TKWJ v The Queen S176/2001 [2002] HCATrans 11 (13 February 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S176 of 2001

B e t w e e n -

TKWJ

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 FEBRUARY 2002, AT 10.22 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with my learned friend, MR M. BUSCOMBE. (instructed by D.J. Humphreys, Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE, SC: If the Court pleases, I appear for the respondent with my learned friend, MS D.M.L. WOODBURNE. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases, I have an application to amend the - - -

GLEESON CJ: Is that opposed, Mr Blackmore?

MR BLACKMORE: Yes, it is, your Honour.

GLEESON CJ: Yes, Mr Game.

MR GAME: The proposed amended ground appears as ground 2 in the proposed amended notice of appeal, which is annexed to the affidavit of David Barrow of 11 February 2002, which I read.

GLEESON CJ: What is the difference between grounds 2 and 1? What does ground 2 add to ground 1?

MR GAME: You get to ground 1 through ground 2 in a sense. If your Honours look at the opening paragraph of our written submissions, ground 1 is really found in the second sentence and ground 2, which is the means by which you get there, is found in the first sentence. In effect, counsel threw away the issue of character without taking the preliminary step of asking the judge for a ruling, and it is that failure to make the application for a ruling which we strike at at the first instance.

The miscarriage of justice is ultimately found and losing the chance of raising good character, hence the possibility of an acquittal, so we connect it into section 6 of the Criminal Appeal Act 1973 . But ground 2 really is part of the argument that leads to ground 1 and it really helps articulate, as we see it, the point that we wish to make. If the Court looks at the passage from the transcript before the Court of Criminal Appeal, the Court will see a passage that we extract at pages 13 and 14 where Justice Sheller states the point - it is annexure B, your Honour, to the affidavit - and Mr Lamprati, who appears for the Crown, says:

That is as it has been honed down.

And the point was not resiled from. There was a very brief reply at the end from Mr Craddock, but not concerning this. Justice James says at line 29:

As I understand it, it has been put either as simply as that or it has been put on the basis that that was due to incompetency by counsel for the appellant at the trial.

Mr Lamprati:

I don't think that word has been used.

But it was the totality of the circumstances which was said to give rise to the miscarriage of justice, but the particular defect or omission that we strike at is the failure to seek a ruling, which was open to counsel, which would have determined the issue which the judge was obliged to give and could have been raised at a number of points during the trial up to and including the completion of evidence-in-chief of the appellant.

GLEESON CJ: Yes, Mr Blackmore.

MR BLACKMORE: The difficulty we have in this amended ground is it alleges an error on behalf of the Court of Criminal Appeal, but I cannot find the judgment that is said to be made that is allegedly wrong. If we go to paragraph 52, which is at page 224 of the book, counsel on the appeal disavowed an approach following the decisions of Birks and Ignjatic and said that they wished to approach the matter in the way in which it is framed in ground 1. The distinction between the two is that in ground 2 it says that:

a miscarriage of justice was caused by the failure of defence counsel -

and yet that failure was not the matter that was highlighted in the Court of Criminal Appeal. What was highlighted in the Court of Criminal Appeal seems to us, and by the court's judgment there, was you can simply look at the fact that the evidence was not led and determine ipso facto that there was a miscarriage of justice. Our case here and, perhaps, we could say we are not particularly prejudiced by an amendment, but our position is the Court of Criminal Appeal were not asked to make that ruling and, therefore, there is no basis for suggesting error on their behalf.

GLEESON CJ: Thank you. Yes, you have leave to make that amendment.

MR GAME: If the Court pleases. May we have leave to file at some time during today an amended notice of appeal in the Registry?

GLEESON CJ: Yes, Mr Game.

MR GAME: Before taking the Court to really what is the short, factual context for this appeal, I wanted to say a word about how we relate the error to section 6 of the Criminal Appeal Act and how we say a miscarriage of justice will be shown, or might be shown. Now, in section 6 there are three ways in which you can succeed and it is the third which is:

or that on any other ground whatsoever there was a miscarriage of justice -

So there are three ways, what used to be called unsafe; second, error on a question of law; third, miscarriage of justice on any other ground. If one goes from there to a case of Re Knowles [1984] VR - and if I could take the Court to that case. I am doing this at this point so that I can show the Court where, as it were, we are heading with the argument.

In Re Knowles at page 761 there is a consideration of the various ways in which one might show a miscarriage of justice. Reference is made to Chief Justice Barwick's judgment in Ratten. In terms of the rules relating to fresh evidence, things have moved along considerably since Ratten but that does not matter for present purposes. In a moment I will come to that question. But for present purposes what we say this case is is a case identified as a case within the second of the categories - that is at line 17 - mentioned by Chief Justice Barwick:

are cases where, because of something which occurred or something which did not occur, the trial become unfair.

A little bit further down on that page at line 25 it says:

In deciding whether there has been a miscarriage of justice, considerations of degree involving an assessment of the importance of a particular defect or omission in the actual circumstances of the trial are relevant.

We say that may seem to be an obvious proposition but we say that it has to be put very much at the forefront, that that is how one determines in a case such as this whether or not there has been a miscarriage.

I next wanted to take the Court to what now brings in principles similar to "fresh evidence" principles to a case called Scott 137 ALR 347. The passage that I want to refer to is at page 362.

Now, at 362 there is a reference to your Honour the Chief Justice's judgment in Birks and we respectfully adopt that, and we disavow the suggestion that one has to establish flagrant incompetence, although we accept that one must focus on some particular error or defect in the procedure. Then Chief Justice Doyle says:

In my respectful opinion, this approach is correct in principle because it concentrates on the question of miscarriage, rather than whether counsel has been negligent or otherwise remiss, although that of course remains relevant as an intermediate or subsidiary issue.

Now, we say in this case counsel has been remiss, and I will say why shortly.

Then if I could take the Court to page 365 in Scott. What his Honour does there is adopt as it were the "fresh evidence" principles and say that they apply in relation to this kind of case. When I say those principles, that is the ultimate question; whether or not, had the defect not occurred, that there is a significant possibility that the jury acting reasonably would have acquitted the accused. Now, we would adopt that as - - -

GLEESON CJ: Just before you pass from that.

MR GAME: Yes, certainly.

GLEESON CJ: When you relate that to a case where somebody looking back on what occurred, or did not occur, at a trial, notices that something could have been done that was not done, or something was done that might have been better left undone, and you then say a miscarriage of justice will occur if the consequence of that has been to deprive a person of a chance of acquittal, you have opened a pretty wide gate, have you not?

MR GAME: Well, that gate, with respect, is already open. That is the way in which this issue is determined and there are cases such as Ignjatic and D that we have put in submissions and that is the way that it is determined in the Court of Criminal Appeal or has been.

McHUGH J: But I am not sure that any of those cases really cover the ground here. This case seems to me to be rather unique. Supposing counsel had asked for the ruling and the trial judge had said, "No, I will allow the evidence of the other offences to be led in rebuttal - of the character evidence". Now, in that situation, to succeed in an appeal, you have to show that the trial judge had wrongly erred his discretion, would you not?

MR GAME: Yes, your Honour.

McHUGH J: Why should you be any better off if you do not ask? Is not one of the factors that you have to show here, first, that the trial judge would have made a ruling in your favour?

MR GAME: Not that he would have made a ruling in - - -

McHUGH J: That is what I am putting to you.

MR GAME: Your Honour, if you have an error of - - -

McHUGH J: Supposing we came to the view that the trial judge would not have made a ruling in your favour, why should we hold that that is a miscarriage of justice?

MR GAME: Your Honour, if the judge had made a ruling not in our favour, then the question would not be on appeal whether or not he should have made a ruling in our favour.

McHUGH J: I understand that, but if you are testing and asking whether there has been a miscarriage of justice, surely an appellate court has to ask what would have been done - - -

MR GAME: Well, no - - -

McHUGH J: - - - and can I throw in these problems: does the matter not hinge on the sort of evidence that was likely to be led? Supposing, for instance, one of the witnesses was going to say that this man has no interest in sexual matters whatever, that he is asexual. Now, that may have induced the judge to think that the evidence of these other alleged offences had to go in in rebuttal of that?

MR GAME: Your Honour, in this case the evidence was not quite like that, but there was a very impressive array of evidence that was put forward on sentence and the judge expressed his surprise about what had occurred in the remarks on sentence, and that is extracted in the judgment. What we say is that the court does not have to come to a positive - Justice Adams did come to a positive conclusion about the issue, but we say that we do not have to come to a positive conclusion. If counsel makes an error, as counsel did here, because it did not occur to him and he says it did not occur to him to make the application, so that is a defect in the process because - - -

GLEESON CJ: Counsel says what did not occur to him. He does not say what did occur to him. Counsel does not purport in his affidavit to explain the process of reasoning and, as he was not cross-examined, as I understand it, sometimes these affidavits sworn by counsel can be accurate but not necessarily comprehensive.

MR GAME: Your Honour, it says in paragraph 42 of the judgment on page 220:

The one possible qualification is that it did not occur to counsel for the appellant at the trial to seek, and counsel for the appellant at the trial did not seek - - -

HAYNE J: Is that consistent with counsel, for example, taking the view that this was not a case in which trial counsel would see the witnesses undergo a voir dire because that would give them a dry run for the evidence they would give before the jury?

MR GAME: He does not say that. He simply - - -

HAYNE J: Exactly. I know he does not say it, but is what he says consistent with trial counsel forming that view, which would cut the inquiry off at the logically prior stage before considering whether to ask for a ruling of the kind now in issue?

MR GAME: Your Honour, we would say that if it did not occur to counsel, then it means he did not have thought processes about whether or not to make an application to the judge. If he did not have thought processes about it, it means it is not in his head, the whole issue of a ruling to the judge. That is the way in which the Court of Criminal Appeal approached it.

HAYNE J: Does this not begin to tease at two aspects of your argument? It seems to me your argument injects questions of possibility at two levels. First you say it is enough to demonstrate that the trial might have been run differently. Not that the trial would necessarily have been run differently - that is, the evidence would have been admitted - the trial might have been run differently. You inject possibility at a second level of the inquiry by saying that if the trial had been run differently, a different result was possible. By injecting possibility at both levels of the inquiry, it seems that you propound a principle which says that miscarriage is established the moment there is a contestable decision taken by counsel at trial. That is a very large proposition.

MR GAME: No. Well, we do not say a contestable decision, we say that the making of an application to the judge, we can infer client's instructions are, "Run character evidence if at all possible." Counsel says, "I will not run character evidence because K stands in the way". That is the end of it from counsel's point of view. But there is a simple solution to that problem which is, "Ask the judge whether or not K will come into this case." Now that is the same, we would say - I know it seems like a hard argument - from the point of view of the appellant, as if there was an unexercised discretion by the judge if the judge had been asked, and the judge simply said, "No" or "I will not entertain that application", or something along those lines. From the point of view of the appellant it really does not make any difference whether the omission is the omission made by his counsel or an omission made by the judge. One cannot pull it in within implied instructions.

I know it seems awkward and difficult, but we would say that when you identify procedures in a trial, the procedure in a trial in this case to ask the judge whether K can come in, is the fundamental procedure for determining that issue. It is not some antecedent application, there is nothing special about it; it is at the heart of what happens when one determines whether or not good character will come in and the Evidence Act itself contemplates that the judge will have to make rulings about how and when character evidence will be introduced by the Crown. For instance, section 110 contemplates it may come in in a particular respect; section 112, which is what Stanoevski was about, is about giving leave to cross-examine.

So the Act is redolent with the requirement to exercise discretions by the trial judge.

GLEESON CJ: But, Mr Game, you began this discussion by taking us to Scott and making the submission that we should apply the same test to a case like this as applied in relation to fresh evidence.

MR GAME: Yes.

GLEESON CJ: But you would not even contemplate suggesting to us that this character evidence should be treated as fresh evidence and the reasons for that are too obvious to mention, but when you are talking about fresh evidence and the question of whether there is a miscarriage because a person has been deprived of a possibility of acquittal, you only get to describe what you are talking about as fresh evidence by passing a series of tests.

MR GAME: Yes, but, evidence that was available is always admissible, as Ratten demonstrates, to show that the trial was not a fair trial, and if one says counsel made a decision which is a disqualifying factor for allowing evidence that is not fresh evidence in, then if counsel makes a wrong decision then the decision cannot be a binding decision, we would say, on his client, but when I say wrong, I mean wrong in an identifiable legal sense, not in some vague quibbling sense, but specifically a wrong decision.

GLEESON CJ: But you are saying here there was a miscarriage of justice because there was a failure to lead certain evidence.

MR GAME: Yes.

GLEESON CJ: Now, it just happens that this particular case is about a failure to lead character evidence and involved in the failure was a failure to make an application to the trial judge for a ruling, but why would you limit the principal to character evidence? What about a failure to lead any evidence in circumstances where, if it had been led, it might have given the accused a possibility of an acquittal, and the decision not to lead it was an erroneous decision?

MR GAME: Well, if the decision was an erroneous decision, then the decision is reviewable, in our submission, because it - - -

GLEESON CJ: An erroneous decision by counsel?

MR GAME: Yes.

HAYNE J: Well, that is Knowles, is it not? Was not Knowles just such a case?

MR GAME: In Knowles counsel thought, wrongly, that he could not lead evidence of the violent propensity of the deceased. He made a wrong decision and the court admitted the evidence on the appeal because he had made a wrong decision. Now, I cannot really hope to grade levels of wrongness, but not occurring to a counsel to make an application to the trial judge is a specifically wrong step forensically.

GAUDRON J: Where does the need to get leave come from? I am just looking at section 110(2) which says "If evidence" - and this is on the hypothesis now that defence counsel had led evidence, then "the tendency rule", which I presume is what would make this evidence admissible, does "not apply to evidence adduced to prove" that he is not of "good character". So, where does the leave bit come in? I presume this is the section we are concerned with.

MR GAME: Your Honour, section 110, but it could have arisen in this case under section 112 if defence counsel had waited until the end of his examination-in-chief and then said, "I propose to lead some further evidence and I want a ruling on whether or not the Crown can cross-examine on the evidence concerning K".

GAUDRON J: Where does this notion of advance rulings come from? I, myself, have some very grave difficulty with it because it looks to me as though it is inviting the judge to get down to the Bar table almost.

MR GAME: Well, no, your Honour.

GAUDRON J: I think I have said this before, but I do not see why in relation to 110 and nobody is talking about cross-examination of the accused in this case. They are talking about leading character evidence and then leading the evidence of K, presumably prior to the closing of the defence case.

MR GAME: Yes, your Honour, but it could have arisen in the Crown case because if defence counsel had said to the Crown, "I want to raise evidence of good character", then at some point in the Crown case the Crown would have applied to call K.

GAUDRON J: What do you mean "applied to call K"?

MR GAME: Well, the Crown would have said - - -

GAUDRON J: It is the notice of application, leave, advance ruling that I am concerned with. They would have just called her, would they not?

MR GAME: Well, they would have called K and there would have been an objection to the evidence of K.

GAUDRON J: Yes.

MR GAME: And then, at that moment, the discretionary provisions in the Evidence Act would have applied, such as 135 and 137.

GAUDRON J: Yes. That I can understand. What I am concerned about is this notion of advance ruling.

MR GAME: Your Honour, can I take your Honour to a couple of cases that - - -

GAUDRON J: I am well aware of the practice that has developed. I am just concerned about its statutory basis.

GLEESON CJ: I am not familiar with these cases that you refer to in this connection in paragraph 14 of your written submissions.

MR GAME: The two cases we refer to are PKS and Robinson. If I refer to PKS firstly. In PKS one sees at page 8 of the Butterworths decision what the rulings were that counsel was entitled to apply to the judge for. They concerns issues under section 112 or 110. Then the proposition is continued on page 9.

GAUDRON J: Where does the entitlement come from?

MR GAME: There is an entitlement in the Act that concerns voir dires which is at section 189 which may be of some relevance to this, but if there is going to be evidence then there will have to be a determination of an issue - - -

GAUDRON J: What happened to the old practice of simply objecting?

MR GAME: Your Honour, can I say this: that was never a practice where I practised originally. It was a practice in New South Wales, but it is a practice that has long gone and for very good reasons, which is that the defence and the Crown both need to know what evidence may or may not be led at the trial, and we have - - -

GLEESON CJ: I think, Mr Game, it is probably partly a function of the increasing length of criminal trials.

MR GAME: Yes.

GLEESON CJ: I have noticed myself that sometimes an issue might arise after a trial has been going for eight weeks and nobody wants to run the risk of discharging a jury.

MR GAME: Your Honour, can I give you an example. It was always the case that if you were about to cross-examine a detective in a particular way you would ask the judge, "If I question this detective to say that he is a liar" - and this has long gone, this line of cases - "will I be putting my client's character in evidence?", and the judge would give a ruling. That has been a practice as long as I have been practising.

McHUGH J: It certainly was not the practice when I was practising.

GAUDRON J: The answer to that was "yes".

McHUGH J: You took your chance.

MR GAME: You did not take your chance for the last 20 years, your Honour.

McHUGH J: I know, and this seems to be a practice that has developed. I suspect was it not a rule of the District Court or perhaps even a section of some legislation brought in which you could seek rulings from the judge before the trial even began.

MR GAME: But Part 53 more or less pushes the parties into making those applications before the trial runs. We have a whole regime of pre-trial disclosure that requires parties to do this.

GLEESON CJ: Yes.

McHUGH J: One of the problems with these rulings, as the judge said in Stanoevski, it is only a sort of preliminary ruling. So, it all depends on how the evidence is going to come out anyway. If there is any change in the evidence, the judge's view will change.

MR GAME: Your Honour, in this case it is never going to be a preliminary ruling because there is a very specific issue which is - - -

McHUGH J: It could be. Supposing in the course of the character evidence one of the witnesses suddenly saying, "This man has never committed any such offence or done anything like this before in his life." Now, in those circumstances, why would the judge not, who by hypothesis ruled in your favour, said, "All right, now you can call K to give evidence in rebuttal?"

MR GAME: Your Honour, because the ruling that he would have conducted would have been an assessment about the probative value of her evidence, and it would have involved an assessment about that, and the probative value would not have gone any higher - - -

GLEESON CJ: But all of these rulings are subject to what occurs in the trial, are they not?

MR GAME: Yes, no doubt.

GLEESON CJ: And they are often expressed to be subject to that.

MR GAME: Yes, but the probative value of K's evidence would go no higher, regardless of what the witness said about good character.

GLEESON CJ: Yes, but if the witness said in the present case, "Look, this man loves little children, and he's, in my experience, to be completely trusted in their company, and I've never seen him behave in any questionable fashion towards a child. He treats them with nothing but affection and respect." and K is sitting up the back of the court. What is going to happen then?

MR GAME: As I say, if the judge had conducted the question or the issue - if the judge been asked to address the issue as to whether or not K's evidence would be admissible, whether by way of cross-examination or by evidence-in-chief, then the judge would have made a finding about whether or not K's evidence had substantial probative value for the purposes of section 137, and if he thought that it did not - - -

GAUDRON J: Probative value of what, though?

MR GAME: Your Honour, that is a quite difficult question because - - -

GAUDRON J: Exactly.

McHUGH J: I know, and you want to avoid it.

MR GAME: No, I do not want to avoid it but it is quite a difficult question because the Evidence Act leaves open the question whether or not the Donnini and BRS line of cases about evidence of other incidents comes in only to rebut good character or whether it is evidence of tendency in itself. An argument is put against us in the respondent's submissions that the Donnini line still applies, but we do not think that that is necessarily the case, having regard to section 101(3) and section 110.

GAUDRON J: What is, in fact, then hypothesised by your argument is that before the trial commenced or, at the very latest, before the prosecution closed its case, I presume?

MR GAME: No, your Honour, at some point immediately prior to closing the evidence-in-chief of the appellant - last thing.

GAUDRON J: All right, so you were prepared to let the - we hypothesise that it might have been a case in reply.

MR GAME: It might have been a case in reply, yes.

GAUDRON J: All right. At some stage somebody was gong to pop up and say, "If I call character evidence, will your Honour exercise your discretion, your general discretion, to refuse evidence in rebuttal on the basis that its prejudicial value exceeds its probative value?"

MR GAME: Yes, your Honour.

GAUDRON J: That is exactly what is hypothesised?

MR GAME: Yes, and that considerations of the kind identified in Hoch would be at the forefront of a consideration of that issue but bearing in mind also that the prosecutor had decided to sever the counts and he decided one of the reasons was that the particularity was not adequate from his point of view.

GAUDRON J: Now, I come back to Justice McHugh's question. Unless you really can say up front the evidence of itself is so glaringly affected by the possibility of concoction, I would have thought that was not a question you could give a ruling on until you had heard the character evidence.

MR GAME: Your Honour, you could put before - - -

HAYNE J: Leave aside the evidence of K.

MR GAME: Your Honour, you would have to call the evidence of K on a voir dire, but the evidence of character is not going to affect the probative value of the evidence of K.

HAYNE J: Why not?

GAUDRON J: No, but the question as to how you might exercise your discretion, and we are talking discretion are we not?

MR GAME: Your Honour, what that means - - -

GAUDRON J: It would depend on the character evidence unless it could be said up front and a priori almost after hearing K on the voir dire, that Hoch rendered this evidence so glaringly affected by the possibility of collusion that its probative value was insubstantial.

MR GAME: If we have to make that submission, ultimately we would adopt what Justice Adams said about it. But we say that we do not have to go that far.

GAUDRON J: Yes.

MR GAME: But we do have to show that there is a significant possibility that that would be the outcome. Now, if the approach that your Honour advanced just then were the approach that is to be taken in cases such as this and, we would say, contrary to cases such as PKS and Robinson, then what that would mean is that counsel, confronted with a situation such as this, would have to run an unacceptable gauntlet and the unacceptable - - -

GAUDRON J: You call it an unacceptable gauntlet, but one has to look at the Act and one has to look at the nature of the trial process, and if counsel cannot work something out with the prosecuting counsel, it may be that a proper construction of the Act in the context of the trial process is that it is an acceptable gauntlet that the Parliament has so decreed.

MR GAME: Your Honour, if the conclusion is that one has to make an assessment of the character evidence in order to make this determination, then all that means is that you would have to call the character evidence on the voir dire.

McHUGH J: Exactly.

MR GAME: That means that you could do that as late as the closure of evidence-in-chief of the appellant.

McHUGH J: But you have to have a mini-trial, have you not, because you keep saying, "Well, character evidence could not affect the probative character of K's evidence". I have difficulty accepting that because character evidence is not something in the abstract, character evidence can refer to all sorts of aspects of the accused's life and one witness may say something about one aspect or refer to a particular incident which enhances the probative value of K's evidence in rebuttal.

MR GAME: But, your Honour, that is a very narrow question in this case. This is about whether or not he has a sexual interest in children and the witnesses were going to say that he does not.

McHUGH J: No, no, it is not. You want to put him forward as a man of good character and the Crown says, "No, he is not a man of good character because he has been indecently assaulting the sister", and the question is whether that evidence is admissible. Well, it is certainly admissible. The question is whether or not its probative value in rebuttal of the good character evidence is outweighed by the prospect of the jury being diverted by hearing that the accused is alleged not only to have assaulted the complainant, but also K.

MR GAME: Yes, your Honour, but the example you gave before was really an example of a person with no sexual interest in children, I thought, was the - - -

McHUGH J: That was just one thing I - - -

MR GAME: But that would not for one moment increase the reasons for allowing K's evidence to be called in reply.

GAUDRON J: What would be the reasons for allowing it to be called in reply? If we start with why you might allow it to be called in reply, then perhaps we can see whether it would have been allowed.

MR GAME: The question whether it might be allowed to be called in reply would involve a Hoch-type examination of whether or not there was a reasonable possibility that it was the product of infection or concoction, and that is the test that is applied in Hoch.

McHUGH J: Yes, but I am not sure that Hoch covers the ground here because by hypothesis this is not a Hoch case, is it? The reason the Crown did not press K in this trial was because it was not a similar fact case, was it not?

MR GAME: There were two reasons they gave why they did not press K in this case: one was because of concerns about S v The Queen which is an inability to particularise the case; and the second was a consideration based on a case called Harvey where the Court spoke of concoctions and spoke of the dangers of calling the cases together. But the possibility of concoction or being inconsistent with guilt is the test applied in Hoch at 296 and 297, and that test, pre-Evidence Act, was applied in the New South Wales consequent upon a case called Wheeler.

McHUGH J: Yes, I know, but the passage at 297 shows the question of concoction was referable to it being similar fact evidence:

the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction.

But that is not the way the Crown is putting its case here. It wants to say that your client is not a man of good character because in the past he has indecently assaulted somebody else.

MR GAME: K only came forward with her complaint after C came forward with his complaint.

McHUGH J: Yes, I know.

MR GAME: If you compare the two complaints, they are full of the details which are the same details. There are his complaints like in the shed and the dog and rubbing her back. There is a list of things that really one could not possibly exclude the - and it was quite clear that they had spoken to each other because she knew what her brother was complaining about before she spoke to the police. Applying Hoch-type reasoning - and this is the approach that Justice Adams took - it is difficult, to say the least, to see how one could exclude the possibility of her evidence being a product of - - -

GLEESON CJ: It would depend on what came out on the voir dire, amongst other things, would it not?

MR GAME: It would, your Honour, yes, but the point in this case is that counsel wished to lead evidence of good character. The only thing that stood in the way of good character was K and all he had to do - - -

GAUDRON J: - - - was look at section 110, is that not right?

MR GAME: All he had to do was ask the judge for a ruling.

GAUDRON J: Section 110 says it is admissible. It is not 110 that invokes any ruling, is it?

MR GAME: No, it is not 110 that - in this particular instance it does not because he would not have been trying to lead evidence in a particular respect which might invoke a ruling under section 110. It is section 137 which would be the critical discretionary section with respect to the Crown leading this evidence. It could be 135, but 137 is the specific provision relating to criminal proceedings. It would be section 137.

GAUDRON J: This is a "must refuse".

MR GAME: Yes.

GAUDRON J: So you get some way along the track if you can say "its probative value is outweighed by the danger of unfair prejudice". There is no risk that there is some prejudice, but what is the probative value?

MR GAME: We say the probative value is diminished significantly by the prospect of infection to the point that it would have to be - - -

GAUDRON J: Is probative value on any matter an issue in the trial? There is a definition of "probative value" in the dictionary, is there not?

MR GAME: There is, I think, yes, but "probative value of evidence" in the definitions means:

the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

GLEESON CJ: Right, so you start from the assumption that evidence of good character could rationally affect the probability. That is the reason good character evidence is relevant.

MR GAME: Yes.

GLEESON CJ: Then evidence that indicates that he is of bad character goes to the same matter, does it not? Whatever benefit he hopes to get from his evidence of good character is going to be cut down by this evidence if it is in.

MR GAME: Yes, but it has no probative value if it is possibly the product of infection.

HAYNE J: Why? Why does it have no probative value if possibly the product of infection? If concocted, then one chain of reasoning might follow.

MR GAME: Well, because it bespeaks serious wrongdoing by the appellant in circumstances where that wrongdoing bespoken may be nothing more than two children talking to each other about the fact that they do not like him, of which there was clear evidence in this case.

McHUGH J: Yes, but the dictionary definition of "probative value" and the terms of 137 rather indicate that Hoch and concoction has nothing to do with this issue, does it not, because have we not said in one of the cases that probative value does not depend upon credibility; that you ask whether or not it could logically affect the existence of the fact?

GAUDRON J: You see, you go back really to 55, which takes you - whether "if it were accepted", it "could rationally affect".

MR GAME: But, your Honour, the prejudice side of it, I agreed with you before when you said, no, but whether it is likely to be prejudicial - - -

HAYNE J: No, prejudice does not mean that your client is convicted. The key expression is "unfair prejudice". Now, where lies the unfair prejudice?

MR GAME: The voir dire section 189 refers to:

whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the defendant -

that is 189(5).

McHUGH J: Yes, but that is prejudicial in the sense that it diverts the jury from its task, either by placing undue weight on some aspect or creating hostility towards the accused. I would have thought you had very little argument about the probative value of this evidence, that your real argument is about the question of prejudice, that once this evidence gets in, it is likely to divert the jury from its task, that - - -

MR GAME: I agreed before with Justice Gaudron, but I should not have, because it is this collateral inquiry that the case comes down to that is the difficulty and was identified by Justice Adams, and Justice James also referred to it, which is that the trial turns into a collateral trial in which the Crown it not, as it were, put to the same test of particularity as S v The Queen would require, but can simply introduce the evidence and then there is this collateral inquiry in relation to this other case.

McHUGH J: Well, I am not sure that a question of collateral inquiry has much to do with it. Just about any criminal trial has collateral inquiry of one sort or another, usually put forward by the defence to divert the issue, but, be that as it may, the question is: collateral issue or not, is it likely to divert the jury from its task of determining this charge?

GLEESON CJ: And the trial judge, considering at the stage of being asked to give an advanced ruling, would be very likely to say, I should have thought, a lot will depend on what the actual character evidence turns out to be.

MR GAME: Well, if that is so, as I said, it would be necessary for the judge to hear that evidence on the voir dire. In my submission, one cannot possibly expect counsel to, as I said before, run the gauntlet on this issue, potentially cause the entire trial to miscarry by leading the evidence of good character without knowing - and this is the critical point - counsel cannot know, unless counsel has had some other opportunity to cross-examine K, at a committal or at some other proceedings, what the answer to the question is.

McHUGH J: Well, that often happens, does it not?

GLEESON CJ: But counsel cannot know what some witness is likely to blurt out in answer to a question in cross-examination.

MR GAME: No, quite, your Honour, but counsel is forced to make an impossible decision, if one is going to throw this back onto decisions made at the point after the evidence is called, and that is - - -

HAYNE J: Well, why? Let us look at that. The moment counsel puts the character of the accused in issue, unless the evidence given of good character is to be regarded as conclusive, any attack made by the prosecution on that evidence of good character is, in one sense, an inquiry into a collateral matter, is it not?

MR GAME: Yes.

HAYNE J: And the jury will have to consider an issue that is at least one step removed from the issue of guilt or innocence directly, is it not?

MR GAME: Yes.

HAYNE J: Now, in the end does your proposition come down to saying that unless the prosecution has an unanswerable attack on the character evidence adduced by the prosecution, if trial counsel for the accused does not have a voir dire, give all the witnesses a dry run through their evidence, it is inevitable that there is a miscarriage of justice.

MR GAME: Well, I hope I do not have to put it that high, your Honour. As I was saying, it is not really a question of whether or not the Crown has an unanswerable case but what - - -

HAYNE J: The answer it might have made to evidence of good character in this case was contestable. You would say contestable to the point where the answering evidence should have been excluded.

MR GAME: I say contestable and I say we should succeed contestable to the point that counsel should have ventilated the issue. If I have to say contestable to the point that counsel must have succeeded, then I will, and that Justice Adams was prepared to come to that conclusion and I would be prepared to say that but that is very much a fall-back position.

Now, what I was saying before was a proposition - I am coming a bit off the track from your Honour's question, but what I was saying before was that it would be intolerable if counsel was forced into a situation of leading the evidence and only obtaining a ruling after that point. A number of your Honours' questions have suggested that that is a course that should be followed, but it is a course that has been eschewed in the day-to-day trial court conduct and in the Court of Criminal Appeal decisions to which I have referred and we say for very good reasons. As I said before, counsel cannot sit back in chambers and come to a conclusion about whether or not the application will or will not succeed before the judge.

GLEESON CJ: But your argument seems to assume that the ruling that the judge could, and should have, given would have been definitive.

MR GAME: Would have been definitive for the time being unless some other thing arose.

GLEESON CJ: Exactly. These sort of rulings are usually expressed to be, are they not, subject to anything that later, in effect, bobs up?

MR GAME: Well, I know your Honour puts that to me to say that there is something wrong with my argument, but I do not see how the fact that the ruling is not definitive can somehow - - -

GLEESON CJ: It depends on what part of the argument you are talking about because you say the miscarriage of justice lay, not in the absence of character evidence from the jury but in the failure of counsel to make a particular application for a ruling. Now, if, in fact - - -

MR GAME: But he did not even turn his mind to it, according to his affidavit.

GLEESON CJ: But we do not know why. We do not know what he did turn his mind to. We do not know for - - -

MR GAME: But we say we do know he did not turn his mind to this issue.

GLEESON CJ: Is it consistent with counsel's affidavit that he said, "When I came to this trial, I thought my principal problem was that I was going to have to meet these two cases and, to my enormous relief, the Crown indicated that they weren't going to proceed today in relation to the case concerning K"?

MR GAME: No, quite the opposite, your Honour. He thought he was coming to court to meet the two cases together.

GLEESON CJ: Yes.

MR GAME: He ended up being confronted with one case and an indication by the Crown that K would be called and then, at that point, he drops the issue but that is not the end of the issue.

GLEESON CJ: Would it be consistent with his affidavit if he had said, "The last thing I wanted to do at that stage was to run the risk of reintroducing K into this trial"?

MR GAME: Not at all. It would be quite inconsistent with his affidavit. He did not say that. He said he decided not to call K because of what the Crown indicated to him. I mean it would be - metaphors perhaps do not apply, but it would be like a surgeon deciding not to make some further operation because they have overlooked at some point along the way some other thing that has to be extracted along the way.

McHUGH J: I know, but this whole question of putting on affidavits and calling counsel as to their reasons, or the relevance of their reasons, seems to me to raise a question in itself. What difference ought it make as to whether there is a miscarriage of justice, whether counsel does not do something for tactical reasons or just fails to do it? Surely it is the effect of what he does that ought to be looked at.

MR GAME: Your Honour, once again the cases - this Court will decide in this case, but the cases have gone far past that point, and Re Knowles is a classic example. Counsel made a legal mistake in Re Knowles. As I said, the legal mistake - - -

HAYNE J: Knowles was not an appeal. It was a petition of mercy.

MR GAME: Yes, but - - -

HAYNE J: Does that inject any relevant additional consideration?

MR GAME: No I do not think so, your Honour because I think the Court of Criminal Appeal sits and hears the thing as if it were an appeal. I may stand corrected, but that is what it does in New South Wales.

HAYNE J: I am simply not sure, Mr Game.

MR GAME: It sits and hears the thing as if it were an appeal, your Honour. As I said, in Re Knowles, one can see the error - it appears at page 768 of the judgment in [1984] VR. It was thought by counsel that they could not lead evidence of the violent propensity of the deceased because of a line of decisions following Justice Lowe in R v Flanagan. At the bottom of page 760 - Mr Buscombe has just drawn my attention to it - the position is the same, I think, as in New South Wales:

The petition which has been referred to the Court is to be dealt with as an ordinary appeal. Re Matthews -

So it is the same, your Honour.

HAYNE J: Yes, thank you.

McHUGH J: The point I was making, I think, was a different one.

MR GAME: Sorry, your Honour.

McHUGH J: And it is this. From the accused's point of view and what happens to the accused and what happens at the trial, what relevance is it whether counsel overlooked the point or did not take it because of a tactical decision, right or wrong?

MR GAME: Your Honour, it makes all the difference because legal representation contemplates that legal representation will be proper competent legal representation. The right to a fair trial, in Dietrich for example, the question whether or not a case should be stayed because a person did not have legal representation, it must be legal representation which, as it were, strikes at the criminal process at the appropriate points in the appropriate way.

McHUGH J: Dietrich assumes that people can only be fairly represented in serious cases if they are represented by counsel.

MR GAME: It does not mean any old counsel. It means counsel that conducts the case competently.

McHUGH J: Yes, but competence then seems to me to be injected into every one of these cases - - -

MR GAME: We would say there is no difficulty with competence being injected into every one of these cases. There has to be a wrongful or a legally wrong decision made by counsel. That is the difference between a tactical decision. If it is truly a tactical decision then a decision will not normally be - and we would say the fact that it is a tactical decision might not be decisive, but normally a tactical decision will not be something that one can construe as a legally wrong decision.

McHUGH J: I do not know. Let us take a Pemble-type situation. Counsel says, "There's a view of the facts here upon which the jury could find manslaughter, but I want to fight this on murder or nothing because I think the jury will hesitate to find murder when they might fall back on manslaughter" and counsel says to the judge, "I don't want you to put manslaughter to the jury". Now, from the accused's point of view he has been deprived, or she has been deprived, of an opportunity to get a manslaughter verdict. Does it make any difference that counsel's choice was a rational choice or something that a competent counsel might make?

MR GAME: Not in that instance because that is an error in the procedure that falls to the judge to make, but that is a different situation to this because in this situation what you have is at this end the accused saying "I want good character", in the middle a possibility of the issue being determined by the calling of K, you cannot impute to the client any part of instructions in counsel overlooking making an application to the trial judge.

McHUGH J: Yes, but let us assume in the situation I have just given counsel explained the problem to his client and the client said "I agree with you, I would rather" - - -

MR GAME: In this case?

McHUGH J: No, no, I am just talking in that case - and said "Yes, I would rather it be murder or nothing", or an insanity plea. Now, that is an issue that often arises where the last thing the accused wants raised is a defence of insanity and would rather fight the case "I am not guilty" rather than raising insanity. What about in that situation?

MR GAME: Those are all cases where the accused desires something, which is the thing that his counsel does, and then identifying an error out of that, but in this case what the accused desires is good character, if possible. He is not desiring of no application. He is desiring of good character. His wishes go in the opposite direction to the actions of his counsel. That contrasts the case totally.

McHUGH J: Do we know that?

MR GAME: We can infer - - -

McHUGH J: This accused may have wanted evidence of good character to be led but he might have been very happy to know that K's evidence was not going to come in.

MR GAME: We know that that is not the case because we know that they contemplated a joint trial at which character would be raised.

McHUGH J: That was going to be forced on them.

MR GAME: That is what they had prepared for.

McHUGH J: Yes.

GAUDRON J: This is one of the difficulties I have. That being so, when counsel spoke to the prosecutor and said, "If you raise good character, we will call K", why did he just say, "Go ahead, call it in-chief. You are on notice. You cannot split your case. Just go ahead".

MR GAME: That is the approach that the Court of Criminal Appeal took, was to compare that trial with the trial that - the trial that he might have got, with the trial that he originally contemplated. The difference with that is, of course, that the K allegations are not before the jury as part of the case so he is at jeopardy of being convicted at some subsequent point in respect of K. The comparison is not an apt comparison with a joint trial at which K's evidence is called. For instance, the problem of particularity is not a problem that would concern the prosecutor in the calling of K at the trial.

What it would mean, if there was not this ability to have a pre-trial ruling, in effect - and a determination of the probative value or the prejudice from the calling of K, if one did not have that, what it would mean is that in cases of joint counts where there is evidence of good character the act of the prosecutor in severing the counts will put counsel in an impossible position with respect to a decision about good character, a decision which cannot be made on the material before counsel.

GLEESON CJ: Mr Game, what is the difference between saying, "It never occurred to me to ask for a pre-trial ruling on some particular issue", and saying, "It never occurred to me to ask that question in cross-examination", or, "It never occurred to me to put that factual argument to the jury in address", or, "It never occurred to me to call that particular witness"?

MR GAME: It depends entirely upon what the question was or who the witness was and Birks is a case of it never occurred to ask that question. It never occurred to ask that question was found by your Honour to ground an appeal successfully.

GLEESON CJ: Birks was a case where the trial judge had given the jury certain directions in relation to the course that was taken by counsel.

MR GAME: Yes, but counsel could have asked questions of his client to clarify what the true position was. It does not necessarily matter, but what I am saying is that if it never occurred to me to ask a question, it may be an erroneous decision which leads to a miscarriage of justice, it may not be. Normally it will not be but my point about - - -

GLEESON CJ: But what does the miscarriage of justice consist in? The double possibility that Justice Hayne referred to earlier? If you had asked the question, you might have got a favourable answer and if you had got a favourable answer, you might have got a different verdict from the jury.

MR GAME: Well, your Honour, it may the failure to ventilate an issue and that double possibility would not come into the - if you fail to ventilate an issue that is important, then there may be miscarriage of justice and the double possibility really introduces a level of nicety to it, in my submission, that determining a miscarriage of justice does not require. I mean, if you fail to ventilate an issue that is important to the case, there will be a miscarriage of justice.

McHUGH J: They must have had a lot of miscarriages in New South Wales, I can tell you. After Jackson's Case at 108 CLR decided that juries could determine the question of voluntariness of confessions as well as judges, there were numerous counsel in New South Wales who never asked for a voir dire because they held the view that the judges of those days never upheld objections to the voluntariness of the confessions and they just fought the case in front of the jury rather than cross-examining police officers for hours or days and giving them a free run on a voir dire. Now, were those counsels guilty of miscarriages of justice in not asking for a voir dire and a ruling by the trial judge on the issue of voluntariness?

MR GAME: With the benefit of hindsight, yes, and the same with respect of a whole series of cases pre-MacPherson, where it was thought that certain issues were for the jury and not for the trial judge and that was put to one side in MacPherson's Case in this Court. So, yes, with the benefit of hindsight. But this is an approach that is taken in other jurisdictions as well. It is taken both in the English, American and Canadian cases and they all look at the level of competence and they make an assessment of it and ask whether or not the conduct was reasonably competent in the circumstances (a) and (b), whether or not using different formulae, but whether or not there was a probability or a possibility of a different income. It is that two-step process which lies at the heart of this.

GLEESON CJ: That brings us to this second ground of appeal of yours. Your do not have a ground of appeal that refers to competence of counsel?

MR GAME: I am saying he made a wrong decision.

GLEESON CJ: But what difference to your argument does it make why he made the wrong decision or how he came to make the wrong decision?

MR GAME: It makes no difference how or why he made the wrong decision.

GLEESON CJ: Then what was the relevance of his affidavit?

MR GAME: To show that he did make a wrong decision.

GAUDRON J: He made no decision at all, in one sense.

MR GAME: He made no decision at all.

GLEESON CJ: Was it simply to rebut a suggestion that this was a tactical decision?

MR GAME: It was not just that, but if it did not occur to him, then, as I said before, he did not turn it over in his mind.

GLEESON CJ: What difference would it make to your argument if it had occurred to him and, thinking about it, he made a wrong decision?

MR GAME: On our argument put at its highest, that would the same, your Honour.

GLEESON CJ: Suppose he made an error of judgment, suppose he had said in his affidavit, "I thought carefully about whether I should seek a pre-trial ruling but, in my judgment, the possibility of persuading the judge that the prejudicial effect of this evidence of K would outweigh its probative value was so slight that I thought I would not go ahead with that and give K the opportunity for a dress rehearsal of a cross-examination"?

MR GAME: That would be a much more finely poised question than the question that is before this Court, which is of a complete absence of addressing - - -

GAUDRON J: But why should it be? What is at the bottom of all this is the notion of a wrong decision. For my part I do not see why it is a wrong decision. I do not know what is meant by a wrong decision in this context. I can see it in a case where a wrong view is taken that the evidence is not admissible.

MR GAME: If counsel had come along and said in a case where there was highly prejudicial evidence in a joint trial in a case concerning another accused, "It didn't occur to me to make a separate trial application", the Court would not hesitate to conclude that there was an identifiable error. That is the very sort of case where the Court would intervene. That case is no different from this - - -

GAUDRON J: Just one moment. You would be looking then though at a situation where the miscarriage of justice would be determined on the basis that there was prejudice and that prejudice deprived the person of a chance of acquittal that was fairly open. That is not what you are saying here, is it? First of all, you cannot say there was prejudice because it did not happen. There might have been prejudice if the trial judge had ruled against you but it would not have been prejudice, assuming no error in the exercise of discretion, that would have resulted in a miscarriage of justice.

MR GAME: The prejudice is that no evidence of good character was led. The process by which one reasons to that is counsel says, "I won't lead evidence of good character because of K". That process of reasoning is wrong.

GAUDRON J: No, I am sorry, you cannot say that, Mr Game.

MR GAME: It is wrong because it omits one step.

GAUDRON J: No, you say the prejudice is that no character evidence was led. Do you go so far as the prejudice is that no character evidence was led whether or not the evidence of K was led?

MR GAME: No, I say the prejudice is no evidence of good character was led, in brackets, no application having been made to the judge to exclude the evidence of K, close brackets. That is how I put the argument.

GAUDRON J: You have to define the prejudice really then - no evidence of good character was led - in circumstances in which the evidence of K might, if an application had been made, have been excluded. There was a chance - - -

MR GAME: There was a reasonable possibility that it would have been excluded.

GAUDRON J: You say there was a chance that evidence could have been led without the countervailing evidence of K?

MR GAME: Yes, but we say there are not two levels of "mights" because that "might" translates into a "might have been acquitted". Justice Hayne put to me that there are two "mights", but the first "might" translates into the second "might" when evidence of good character is led. That is where we say the first "might" translating into the second, you have an identifiable miscarriage of justice.

GLEESON CJ: Mr Game, a possible point of view is that the error that you are fastening on to is at some stages remote from the actual material that was before the jury and upon which they decided. The jury decided the case in the absence of evidence of the good character of your client and that, you say, resulted in a miscarriage of justice.

MR GAME: Yes, in the sense that he did not have a fair trial.

GLEESON CJ: It is almost as though you are putting an argument in rejoinder. It is as though you come and say, "There was no character evidence before the jury; therefore my client didn't get a fair trial". Mr Blackmore you expect to say, "But just a minute. There was no character evidence before the jury because you or counsel didn't lead any character evidence before the jury". Then you want to say by way of rejoinder, "Yes, but the reason there was no character evidence led before the jury was because of an erroneous process of reasoning that might, if the error had been absent, have produced the result that possibly evidence of good character could have been led possibly without the problem that would have been attracted by the evidence of K".

MR GAME: Possibility is not a diminishing percentage, because the first possibility translates all the way through to the conclusion. The possibility is that the judge would have excluded the evidence and once you get to that point, you have no further diminishing percentages of the possibility.

GAUDRON J: And that does not depend, however, when you put the argument that way, on an advanced ruling, because ultimately it seems to be that the error was in not taking the risk, does it not? Is that not really what it comes to? The error was in not taking the risk or not facing the risk.

MR GAME: We would rather not have to put the argument that way.

GAUDRON J: Well, I know you would rather not, but is that not what the error amounts to, that you assert, not running the risk?

MR GAME: No, your Honour.

GAUDRON J: Really, what I am saying is, would not you be making the same case if the person had actually considered it all?

MR GAME: That depends on the precise contents of the consideration, your Honour. If there were other matters that it considered, like time and expense and matters of that kind, there might be a different complexion, but if he simply considered it and decided that on the basis of the material he had that he would probably lose, it might well be the same, your Honour. But what we really say is - and I have really said this more than once and I apologise for repeating it - it is the not calling of the evidence in K in circumstances where, shall we say, the safeguard was not engaged and the safeguard which the system puts there, the safeguard to meet the single concern that counsel had, which was the evidence of K.

GAUDRON J: You say the safeguard is there. I am not sure it is. That is an area of which I remain to be convinced.

MR GAME: I would be repeating myself to say that there are very good reasons why that safeguard exists. Now, if I could briefly take - - -

GAUDRON J: I mean, could we come at that in another way? What if the trial judge said, "Look I am not going to rule on this. Call your evidence and we will see what happens"? What if the trial judge had said that?

MR GAME: That is an error, your Honour, which would have - - -

GAUDRON J: Where is that?

MR GAME: That is an error, because he is obliged to rule on that question.

GAUDRON J: When?

MR GAME: When the application is made.

McHUGH J: Why?

GAUDRON J: No, wait a jiff. No, the application - you see I can well understand the trial judge saying, "Look, I will rule on whether or not to admit the evidence of K if and when the evidence of K is tendered". What forces the trial judge, what compels the trial judge to give an advance ruling? I mean, I have been in cases where judges have refused to rule on relevance. They will say, "I will admit it subject to relevance", and you wait till the end of the day.

McHUGH J: That is why I said to you on the special leave application that it was not an entitlement to a ruling; it was a privilege to ask for one. Until the evidence is called, unless there is some statutory foundation or rule of court, I do not know of any ground upon which the judge can be required to rule in advance.

MR GAME: Well, your Honour, he can be forced in pretty short terms by defence counsel saying to the Crown, "I am going to raise character", and the Crown will then say to the judge, "I have called K", and defence counsel will say, "I object", and at that instant the judge will be forced to make a ruling and he will not be able to avoid it.

McHUGH J: Well, it will not be when he says, "I call K", "I object". If it is done properly it will be - - -

MR GAME: Your Honour, that really is immaterial, because you would not let the witness go into the witness box to say their name and address, because you would have to discharge the jury, and that is the whole point of these pre-trial rulings. I mean, there is a whole movement in criminal procedure reform which abhors that particular approach and it is called pre-trial disclosure, and it forces the parties to identify the issues.

GAUDRON J: That is right. So, pre-trial you had - - -

MR GAME: In New South Wales pre-trial you can do it, under Part 53 of the District Court Rules.

GAUDRON J: Yes, very well, but in this case you had indicated before the prosecution closed its case, or counsel then briefed had indicated that he wished to call character evidence. That is part of the pre-trial or the ordinary course of disclosure, is it not?

MR GAME: Yes.

GAUDRON J: That had been indicated. Presumably at some later stage he then told the prosecutor, "I'm not going to call character evidence now". One has to infer that.

MR GAME: Yes.

GAUDRON J: Now, that seems to have been the mistake, does it not, because what would telling prosecuting counsel that he was not going to call it - - -

MR GAME: That is correct, your Honour.

GAUDRON J: So, for that purpose he must have made a decision not to call it, but, yes, the case could have been conducted without any risk, I should have thought, to anybody on the basis that the prosecutor tendered the evidence of K, in-chief, in his case in-chief or her case in-chief, as the case may be. It is immediately objected to and the trial judge makes a decision. Now, at that stage - - -

MR GAME: So framed the error is the decision not to call evidence of good character, the error is the decision - - -

GAUDRON J: No. Well, at that stage, it could be told in the context why the prosecutor seeks to call this. A ruling then, based on what you call Hoch considerations, which, as I see it, seems to be the only matter that has been thought to be relevant to - - -

MR GAME: Well, the particularity. The S v The Queen problem is another problem.

GAUDRON J: Yes. If the trial judge then ruled that he would admit it - - -

MR GAME: Sorry. There is also the issue of diverting the jury from consideration of the case into considering the case involving K, which is the matter that Justice McHugh referred to before. Yes.

GAUDRON J: - - - then it would still be open to the defence counsel to say, would it not, "Well, I'm not calling character evidence now so you needn't persist with calling K. You can't persist with calling K". Now, that is as close to an advanced ruling as you could legitimately get, I would have thought, in this, is it not?

MR GAME: But if he said, "I'm going to call evidence of good character", and he had done nothing after that, then the next thing that would have happened in the case would have been an objection to K's evidence.

GAUDRON J: Yes, in-chief.

MR GAME: In-chief, before she got into the witness box.

GAUDRON J: Yes. Well, I do not know that you can do that.

MR GAME: Sorry, your Honour. Objections are always taken before - if the substance of a witness' evidence is objected to, they are always taken before the witness gets into the witness box otherwise the jury are wondering why the witness is there.

GAUDRON J: Yes, all right.

MR GAME: So, if you call a witness and then you do not ask them any questions, then it raises the risk of the jury being discharged, which is why, in trial process, a witness is not put in the witness box if the substance of their evidence is going to be objected to. So, at that instant the Crown Prosecutor would have had his evidence objected to and there would have had to have been an inquiry, exhaustive or not, and we say even if it was not necessarily exhaustive, it would have put counsel in a position where he knew, on the evidence that was available at that time - and he could have made a decision, for instance, how far to take the character evidence - - -

GAUDRON J: But the point of what I put to you was that the error seems to be in a decision not to call character evidence or in a decision telling the prosecutor that he was not going to call character evidence. Now, it seems to me difficult, if at some stage, as would seem to have been the case, there was communication between defence counsel and the prosecuting counsel to the effect, "I will not be calling character evidence", the error seems to be at that point and there seems to have been a decision not to call character evidence, and we come back to where we were before, really.

MR GAME: We do.

GAUDRON J: That is the problem, the decision not to call character evidence.

MR GAME: Well, my point all along - - -

HAYNE J: Your complaint being that that decision was not a sufficiently informed decision.

MR GAME: That is correct.

HAYNE J: And thus the point for which you contend is that if counsel make a decision to call or not call evidence at trial that can be characterised as an insufficiently informed decision, there is a miscarriage. Again, a proposition of startling width.

MR GAME: I am sorry, there is only a miscarriage if the second leg of the argument succeeds. You have the wrong decision, you have to have the possibility of a miscarriage - of an acquittal being tacked onto that as the second leg.

HAYNE J: The evidence assumedly being relevant, that second leg, as you describe it, is one that I would have thought was inevitably satisfied by the bare fact of the relevance of the evidence that was not led. The difficulty that underlies this notion of sufficiently informed decision, is that it requires a court, an appellate court, to form a view without knowing what counsel had in their brief. The one thing you learn first as a trial judge is you do not know what counsel know. You know about 10 per cent.

MR GAME: I have said this before, but in this case we do know what counsel knew, and we know why he did not lead the evidence of good character, because it was a concern about K. There was something he could have done about that.

GLEESON CJ: Yes, but what he could have done about it would not necessarily have resulted in changing his mind. This is why, as a matter of principle, the approach of Justice Adams is correct, is it not, as a matter of principle, leaving aside its application to the facts of this case. Unless you can get to the point of saying if counsel had taken the course that he omitted to take of applying for a ruling, that evidence of good character would have got before the jury, then you have got a problem because the reason he did not call the evidence of good character was not that it was irrelevant or unhelpful, it was because it was risky. The risk was that if he called that evidence he would call down on his head the evidence of K.

Now, unless you can say that that risk would have been eliminated had he applied for a ruling, you do not get to the point you need to reach, do you?

GAUDRON J: Because you would be in the same position that you were in now.

MR GAME: What we say about that is that - and I put this before - the failure of counsel to turn his mind to this question of seeking a ruling is no different than if the judge had been asked to make a ruling and said, "I won't."

GLEESON CJ: It is different in that all that you can say is that counsel failed to take a step that might have minimised or even eliminated a risk.

MR GAME: Same with the judge saying, "I won't make a ruling." The result might have been different. The error is precisely the same, except one is on one side of the Bar table and the other is on the other. The error is precisely the same from the point of view of the accused.

GAUDRON J: It is not exactly, because on the scenario I ran through with you before, with which you agreed, you could well have ended up in exactly the same position as you did.

MR GAME: It is possible.

GAUDRON J: Yes, and you would have ended up, ultimately, as a result of your own decision. So it seems to me - - -

MR GAME: Yes, but the court has procedures for a particular reason and - I know the court has not been keen to accept it - but one of the procedures that the court has is the facility of a ruling to be made. As I said, whether or not one accepts that that facility will be engaged at no later point than at the moment when the Crown Prosecutor calls K. If the court has that procedure and counsel does not avail himself of it then it does not really matter whether or not there is one error or six errors in the trial, that error is the critical error in the trial, so that exercises in characterising the incompetence are not terribly important at that point.

There are cases where counsel's incompetence is - say there are six things counsel has to do in a trial and he does none of them - then there are cases where the court said that incompetence is sufficient to uphold the appeal, we do not even need to inquire into the possibility of an acquittal, and that is cases such Boodram in the United Kingdom in the Privy Council, there are cases that go that far. We say that when you have one decision and one decision that impacts on the very process that the court offers, the very process which the court offers to provide an orderly determination of this issue, and that is procedure is not availed of and then counsel simply says "I will not call K", then if one can identify a reasonable possibility that the ruling would have been in his favour then that is conclusive, in our submission, because it shows that there is a possibility that he would have been acquitted and that possibility is sufficient coupled with his error.

GAUDRON J: There are cases, are there not, that have been to this Court where there has been the denial of the existence of a discretion when there is, in fact, one, or there have been decisions which amount, in effect, to a constructive refusal to exercise discretion?

MR GAME: A recent case of Graham is maybe not quite on point but that is a wrong exercise of discretion and the Court held in that case - that is a case about where the complaint - and in that case the Court said it is not possible to say, the court having misconstrued the discretion under section 66 about recent complaint, it was not possible to say that the court would have come to another ruling having regard to section 108 and therefore the conclusion was that there was a miscarriage of justice. That is at 195 CLR 610:

Because its admission was not inevitable, we cannot say the appellant did not lose a significant chance of acquittal -

and we say that that principle - that is another way of stating the principle which I put at the outset, which was an adaption of what Chief Justice Doyle said in Scott and we would say that that principle applies in this case. This does not open floodgates, there has to be some wrongful decision in the sense that it is a decision that impacts upon the trial process. This impacts upon the - - -

GAUDRON J: You say it is as if the trial judge had ruled "I have got no discretion to exclude K's evidence".

MR GAME: Exactly, looked at the point of view from the - - -

GAUDRON J: And thereupon counsel decided not to call character evidence.

MR GAME: Exactly, your Honour, that is our argument.

GLEESON CJ: The problem is parties are bound by the conduct of their counsel but not by the conduct of the trial judge.

MR GAME: Parties are not bound by the conduct of the counsel when the conduct is wrong, and that is the whole point.

GLEESON CJ: In any respect?

MR GAME: Your Honour, I would not make it necessarily a sweeping comment, but if counsel - - -

GLEESON CJ: What do you man by the word "wrong" in that connection?

MR GAME: This is a wrong non-decision. What I mean by "wrong" is this is a decision which is contrary to the processes by which issues are determined in an orderly way in the court process.

GLEESON CJ: I take it that by "wrong" you do not mean contrary to the best interests of the client?

MR GAME: If you want to put the proposition generally, I do not mean wrong in the sense of best interests of the client but, your Honour, a decision might look like a wrong decision but it will not be a wrong decision because it was made in the best interests of the client. For instance, if counsel asks one question too many of a police officer in cross-examination where his instructions are to go as far as he has to: "Fight the Crown witness as hard as he can" shall we say, he has made a decision that looks like a wrong decision but it is not a wrong decision because that is part of his case. He has made a mistake but it is not a wrong decision in the relevant sense. It is part and parcel of his implied instructions. He does not have implied instructions to make serious legal mistakes which is what this really is in this case.

It is a quite serious legal mistake - because of the very process that the courts have devised for resolving these issues and they are difficult issues and they arise regularly in sexual assault trials where there is severance of counts and an issue about good character and they have been arising regularly in New South Wales courts since Hoch and since Wheeler in 1989. It is a regular process and it is a regular occurrence and this is the way the courts have devised to resolve it, and that process was not engaged and it could have been and that was wrong.

GAUDRON J: When you answered to the Chief Justice you said "since Hoch". Are you suggesting that this evidence would automatically have been admissible in answer to evidence of good character prior to Hoch or that it would inevitably have been inadmissible?

MR GAME: No, your Honour, but Hoch marks an adoption of Boardman - of a particular speech in Boardman and, as I recall, it was Lord Wilberforce's - I may be wrong, but Hoch really changed the law in Australia and Boardman, which - - -

GAUDRON J: In what respect? Are you saying that the evidence went in automatically before?

MR GAME: No, but the whole of similar fact evidence was not determined on the basis of excluding the possibility of infection and concoction prior to Hoch. The test was applied - - -

McHUGH J: What about Boardman, was that not - - -

MR GAME: It said real chance was the test that was applied in some of the speeches in - - -

McHUGH J: In Boardman that was part of the issue, was it not, the question of concoction and collusion in Boardman, and that is back in 1974?

MR GAME: Maybe I should have said since Boardman, but Boardman is the first case in which there is an attempt to pronounce some unifying principle with respect to similar fact evidence.

GAUDRON J: I would have thought - you see, I am amazed at your submission or your answer to the Chief Justice - because I would have thought, talking purely in the context of rebutting character evidence - and that as I understood was the context of this case - there would always have been a discretion, being prejudicial value outweighing probative value.

MR GAME: No doubt, no doubt, your Honour.

GAUDRON J: That would undoubtedly have raised - well, I would have thought it would, I will take back "undoubtedly" - precisely the same issues as are involved in Hoch or at least a consideration of those. So it is not right to say, I should not have thought, that in the context of character evidence and rebutting evidence that problems have arisen since Hoch.

MR GAME: I did not mean it to say that Hoch was productive of problems.

GAUDRON J: It is the way I understood your submission, Mr Game.

MR GAME: No, sorry, I really did not mean that at all. What I meant was that this issue has been an issue that has been focused upon or has arisen in a specific way since Hoch, but there is also the fact that since the mid-1980s there have been an enormous amount of sexual assault trials with multiple complainants and I do not know about what things were like before then, but certainly when I first practised, there were not terribly many multiple sexual assault counts with multiple complainants. It may be that that itself is a thing of the recent past.

McHUGH J: What about in BRS, does the judgment of Justices Toohey and her Honour Justice Gaudron and Justice Kirby deal with the Hoch aspect in relation to rebuttal, good character evidence? I have a vague recollection that Justice Gaudron may have mentioned the question of concoction in her judgment in BRS?

MR GAME: There is a discussion of it in BRS, but I am not sure whether it is on our list. In Justice Adam's judgment, at page - he says Wheeler would have been determinative and then at some point he refers to the judgment in BRS - - -

McHUGH J: It is at the bottom of 229-230, I think is probably what you are probably after.

MR GAME: Yes, especially in the line of the judgments of Justices Toohey, Gaudron and Kirby in BRS, respectively 292 at 301 and 328.

McHUGH J: But he had some doubts whether Hoch applied because of those judgments, but I am not sure he is right, is he? I am not sure that that statement is correct, is it? My recollection was that in BRS Justice Gaudron did refer to questions of collusion, but I am not sure.

MR GAME: I have not looked at BRS to check that reference, your Honour, but I will have Mr Buscombe have a look. Your Honour Justice Gaudron, I did not mean to be argumentative about Hoch, but Hoch did take a particular view of excluding evidence where there is a possibility of collusion and that view was certainly not a view that, as I understand it, was applied in courts even applying Boardman in lower courts in Australia prior to Hoch.

GAUDRON J: But all the evidence went in.

MR GAME: That is right, all the evidence went in. It was a free for all.

GAUDRON J: But it certainly did not produce any great issues in relation to character evidence.

MR GAME: No, your Honour, but if the evidence all went in, it would have been precluded because it would have gone in in the Crown case in any event, so that it would have been there as part of the evidence in the case.

McHUGH J: Yes, in BRS 191 CLR at 300 and 301 Justice Gaudron said:

the possibility of concoction should have been explored by the trial judge in the absence of the jury -

Perhaps she does say:

if it was to be left to the jury as direct evidence of the appellant's guilt.

On the other hand, Justice Toohey at page 292 said that Hoch did not apply.

MR GAME: I should mention that there is a New South Wales' case of OGD which says that strictly speaking Hoch does not apply but that the same considerations do apply and that Hoch and Wheeler apply, but in the exercise of discretion.

GAUDRON J: Well, I would have thought, in the light of the provisions of the Evidence Act, that is what must be the case.

MR GAME: We say that is correct as a matter of - we do not dispute that, but I mentioned before, the Crown has put in argument that the effect of section - and it may be that the issue does not have to be resolved in this case - but the Crown has put in argument that at some point may have to be resolved and maybe in this case, but the effect of section 95 is that the good character evidence would only come in to rebut evidence of good character, but I am not sure that that is correct, because section 94 it appears to assume the application of the tendency rule and the tendency application is taken away by section 110 and section 101(3) takes away the application of section 101. So that, by the operation of 110 and 101(3), it seems that, subject to exercise of discretion under section 136, the evidence would come in as evidence of the truth of the assertions, namely that he had committed the offences against K.

The argument that is put against that focuses on section 95, and it may not be determinative, but the result is that if the submission I put is correct, then Donnini is not good law under the Evidence Act. If the submission that the Crown puts is correct, then Donnini and BRS continue to apply. But it could be resolved by the judge exercising a discretion under section 136 to limit the use of the evidence.

I have really put the substance of my argument but I wanted to just refer briefly to Justice James' judgment. Most of it has been addressed already, but at page 220 your Honours will see at paragraph 41 that he says that the decision not to raise good character "was, subject to one possible qualification". We say I have addressed the Court on what that possible qualification is and it is rather more, in our submission, than a possible qualification. Then at 42 he says "it did not occur to counsel" to make the application. At 43 on page 221 he says it was open to - and "the trial judge is obliged to give a ruling". That is paragraph 43. Then the way in which the judgment - at the top of page 224, paragraph 51, his Honour says:

In my opinion, it is not possible for this Court to say any more than that, if an application for a ruling had been made, the trial judge might have made, but might not have made, a ruling favourable to the appellant.

We say that if that means it is reasonably possible, then that would translate to a miscarriage of justice. What his Honour seems to have done in the concluding passage in the judgment is to compare this trial with the trial that was originally anticipated. One sees that at paragraphs 55 and 56. We say that that is not the apt comparison and that his reasoning really fell into error when he started to approach the case from that point of view on paragraphs 55 and 56, which appear to be at the very heart of this decision. Then at 58 he reiterates what he said at - - -

GLEESON CJ: Just before you go to there, the point of departure between the majority and Justice Adams is what appears in paragraph 51, is it not?

MR GAME: Yes, but on my argument we win the case on paragraph 51.

GLEESON CJ: But Justice Adams decided the case on the basis that it was possible for the court to say and the court should say that if an application for a ruling had been made, there would have been a ruling favourable to the appellant.

MR GAME: Yes, and that takes me to Justice Adams'- your Honour, the way he frames it is - there is a qualification on that. If your Honours go to Justice Adams' judgment, there is a qualification on that because he says at 232 in paragraph 70 at line 35:

The result of counsel's incompetence was, or at least probably was - - -

GLEESON CJ: Have a look at paragraph 69.

MR GAME: Quite, your Honour, but the reason I refer to line 35 in paragraph 70 is that he appears to qualify it by reference to Ignjatic, which is one of the cases that we rely upon. As I have said, if we have to go that far, then we are prepared to go as far as paragraph 69, but my argument is one essentially that we do not have to go that far. Those are the substance of our submissions, if the Court pleases.

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

MR BLACKMORE: Your Honours, the principal submission for the respondent is that the law presently allows the setting aside of a conviction that results in a miscarriage of justice in circumstances when it is alleged that an error or decision was made by counsel in the conduct of a trial only when that error involves a fundamental mistake as to a matter of law, which was the decision of Knowles, or - and this is where we say this case rests - where it can be characterised as a tactical or forensic decision in circumstances where the Court of Appeal concludes that no reasonably competent counsel could have reached the same conclusion.

That is the thrust of our argument. There must be some analysis of the conduct of counsel. The reason that we differ with my friend is that he has characterised, without saying so, the error here as being an error of law.

GAUDRON J: But is it not?

MR BLACKMORE: Perhaps if I can just explain why I say it is not, then I will answer your Honour's question.

GAUDRON J: On the assumption, however, if you would let your analysis - on the assumption that the decision not to call character evidence was communicated before the prosecution had closed its case.

MR BLACKMORE: There are a number of factual issues that arise in this case and it is very difficult to address these things necessarily generally but I will try to address them in relation to this case and then perhaps it will become clearer whether we can address them generally. It has been characterised, in our submission, as an error of law. In other words, it is something that is, in effect, black and white. It can be seen that counsel made a mistake, clearly because he was entitled to make an application to the trial judge for a ruling but did not.

In our submission, if cases such as Robinson and PKS in the Court of Criminal Appeal of New South Wales are read to be that counsel is obliged to make such a submission or ask for such a direction, they are just simply wrong. The role of counsel, which was the matter that your Honour the Chief Justice raised and dealt with in Birks, and I will come to some of those paragraphs, is a very significant role in the conduct of a criminal trial. Just going to the decision of PKS which is relied upon by the - - -

HAYNE J: Well, at some point could I have that part of the District Court Rules that regulates applications for rulings of this kind?

MR BLACKMORE: Certainly, your Honour. I will see that they are copied over lunch. I am happy for them to be handed up now if there are sufficient copies. If not, I can - - -

HAYNE J: Thank you.

GAUDRON J: I think I went through these before and found it very difficult to find out where it was that authorised rulings as to the admissibility of evidence in advance, unless you found it under 10(2)(h) "for directions generally".

MR BLACKMORE: My friend mentions rule 11 and I am happy to mention it as well but I am not in a position at this stage to succinctly address this matter. The way in which this evidence arises must be considered, absent the District Court Rules, with respect. It must be looked at in terms of the Evidence Act to start with. There is nothing in the rules that is going to allow for inadmissible evidence to be tendered in court or admissible evidence to be objected to unless there is a process undertaken. Perhaps I can explain that in more detail and I might have to address these maybe even after lunch.

Coming back to the decision of PKS. This is a decision that is relied on very firmly by my friend. At page 10 of the decision a number of propositions are put by Justice Wood on behalf of the court. Right at the top of the page, it is important to have regard to the words that were used by Justice Wood, and they were not words of obligation at all, with respect. What he says:

In the light of what is stated in the foregoing propositions, counsel - - -

GLEESON CJ: Just a moment. This is page 10 of the Butterworths judgment, is that right?

MR BLACKMORE: I am sorry. No, we have the unreported decision.

GLEESON CJ: We have been given the Butterworths Unreported Judgments.

MR BLACKMORE: I will see if I can - - -

GUMMOW J: Under what ground does it appear?

MR BLACKMORE: That is not immediately obvious to me but - - -

GLEESON CJ: Mr Blackmore, what you just read to us is at the bottom of page 7 of the version that we have.

MR BLACKMORE: Right. My friend has given it to me now, your Honour. In fact, it is towards the top of page 8, your Honour, that I wanted to refer to, the sentence that says:

In the light of what is stated in the foregoing propositions, counsel for the accused was entitled, in our opinion, to apply to the trial Judge for rulings on the questions -

but there is an anterior question here, and that is - - -

GUMMOW J: What is the source of the entitlement? Entitled to a favourable exercise of discretion under rule 11?

MR BLACKMORE: I am not sure I can answer that question without referring immediately back to the Evidence Act.

GAUDRON J: It is. Even if it is an entitlement under rule 11, what about rule 11 obliges the trial judge to give such a ruling? That is why I said look at it on the basis that it happened - that before you closed the case the matter still stood as though character evidence were going to be called and you had been notified, because then what would have happened, you having been notified of it, you would have been required in-chief to tender the rebutting evidence, would you not?

MR BLACKMORE: No, with respect, not necessarily. Perhaps, yes, but all of this is still dependant upon the way in which the matter is run by defence counsel at the trial.

GAUDRON J: Yes, I know that.

MR BLACKMORE: Because 110 makes it clear that the triggering mechanism for this is the tendering of evidence. So the way in which, in practical terms, this would have occurred in this case - and this is clear, with respect, and any other proposition is almost beyond acceptance - that counsel here would have sought to cross-examine the police officer about the appellant's lack of convictions. One could not understand, if you are going to enter into this process, why you would not start there. There would be a deal of good cross-examination material that you could get from that police officer about the thoroughness of his search in relation to the convictions, the fact that he has no other convictions in relation to any matter whatsoever, you have looked very carefully at that line of cross-examination. To hypothesise that you would raise this somehow for the first time in the appellant's case is, with respect, unrealistic and would itself be an error of judgment, if not an error that would apply under these rules of Birks.

HAYNE J: Would cross-examination of that kind trigger 110(2) or 110(3)?

MR BLACKMORE: We would submit (2), your Honour.

HAYNE J: And if the trial counsel for the accused asked the police officer in particular, "Does my client have any conviction for any offence of a sexual kind?", does that trigger 110(2) or (3)?

MR BLACKMORE: Well, if we are talking about this case, your Honour- and it is easier for me to answer in this case - this was a case where he relied upon his general character, not upon any specific character, because - - -

HAYNE J: Well, if that were so, why would the evidence of K ever have got in?

MR BLACKMORE: Because it touches upon his general character as much as it touches upon the specific character. It cannot legitimately be said that a person is a person of good character if they also - - -

HAYNE J: What you say may be right, Mr Blackmore, but 110(2) and (3) seem to be predicated upon a distinction between evidence which says, "The accused is of good character" and evidence which says, "The accused is of good character" in a particular respect, and the answer that may be made under (2) or (3) seems to be similarly confined. If you give evidence of the first, does it entitle you to then call the evidence of K.

GAUDRON J: Generally.

MR BLACKMORE: Generally. Our submission is that the subsection (3) is included in (2) but not necessarily. The whole point of (3) was if you had convictions for some unrelated matter, that it would be unfair to lead those.

GLEESON CJ: Mr Blackmore, was the mother of the complainant and K called in the Crown case?

MR BLACKMORE: Yes.

GLEESON CJ: Well then, even if the questions that have been asked of the police officer had been general, if character was going to be put in issue of the kind that was ultimately adduced on sentencing proceedings, presumably it would have come up in the cross-examination of the mother.

MR BLACKMORE: Yes, your Honour. I only raised this matter just to say that in reality that is where it would have occurred in this trial and I have been somewhat diverted by that.

GAUDRON J: Well, if that is the case, then how can you get a ruling? How can you be entitled to a ruling, it seems to me to be the problem? I can see how you could force a ruling by not cross-examining but saying you are calling positive evidence of good character?

MR BLACKMORE: I know this is not going to assist, but if I could address the District Court Rules after the break, it would assist me, as I have only just been handed them, but as to the entitlement. I mean, PKS says you are entitled. That has been the way the law has been applied in New South Wales. I accept that.

GLEESON CJ: But there is still an impression, is there not, about the content of the ruling. If before the trial commences, before the jury has been empanelled and one of these directions, one of these pre-trial directions hearings, counsel says, "I want to cross-examine the mother about questions relating to the character of my client and, in particular, I want to put to her that my client's behaviour towards any other children has always been impeccable" - - -

MR BLACKMORE: "Exemplary".

GLEESON CJ: - - -then presumably the judge would say, "Whether or not I would then allow the evidence of K to be called is going to depend upon what the mother says".

MR BLACKMORE: Correct, and one of the points we make is the procedural issue which was in the mind, we would say, of any counsel running this case, which is not specifically addressed by his evidence, is those very issues about "If I proceed down this track, assuming that the track is available to me" and, with respect, nothing radically has changed under the Evidence Act. It has always been the law you could object to evidence; you could always object to this form of evidence, because it was a question of whether it was prejudicially inadmissible to the accused. So nothing has changed. The decision made by counsel though- I suppose the nub of the point that I am making is, why would he think about this issue? Why would he think about having to get a pre-trial ruling or a ruling during the trial.

The Court, in our submission, should focus upon the decision he did make and the decision he did make was not to call character evidence, and the question is, were there tactical considerations, forensic considerations, relevant to making that decision and if there were, unless it can be said - and in fairness I cannot answer this absolutely for the Court, in our submission - we submit, there were forensic considerations. It is possible a court could rule differently but, in our submission, there were forensic considerations here. Firstly there was risk that the evidence would be admitted itself. That is a forensic consideration. Secondly, there was the fact that there would have to be a trial within a trial. That trial would have almost all of the players and, in fact, more of the players than would actually give evidence in the trial.

GLEESON CJ: That is another problem I have about these affidavits of trial counsel. It depends on the circumstances of the individual case, no doubt, but was there cross-examination on this affidavit?

MR BLACKMORE: No, and - - -

GLEESON CJ: How do you cross-examine a trial counsel without asking him what is in his brief?

MR BLACKMORE: With great difficulty, unless he waives privilege specifically, and in this case there is this other difficulty that I - - -

GLEESON CJ: I will just remind you that Birks was a case in which the facts were that trial counsel failed to cross-examine a female complainant on something that went to the heart of one of her allegations, but it did not just stop there. When the client was called the Crown Prosecutor cross-examined the client about the barrister's failure to cross-examine the witness and went right into the question of the instructions that the barrister had received from the client. That issue was opened up at the trial.

MR BLACKMORE: Yes.

GLEESON CJ: Both the barrister and the solicitor knew that the client had given instructions for such cross-examination and then the trial judge told the jury to apply Browne v Dunn, but that was a case in which the question about the instructions that trial counsel had got from his client was brought right out in the open at the trial. But I have great difficulty understanding how you can explore an issue like that in the Court of Criminal Appeal.

MR BLACKMORE: And with, with respect, the benefit of hindsight. The error of approach by the appellant here is to say, "My client didn't get to lead evidence of character. Character is very important to my client. The fact that I did not get to lead character evidence creates a miscarriage of justice". But, with respect, the approach that the respondent submits is the appropriate response - and I will go to some authority in relation to this - is there must be - and I heard what your Honour Justice McHugh said about this - some vitiating factor before the court considers miscarriage of justice when the ground is raised in this way, and the vitiating factor is the conduct of counsel. However you describe that conduct, whether it is flagrantly incompetent or some other moniker that you apply to it, it must be such, in our submission, that you can say that no other counsel - some other reasonably incompetent counsel, confronted with that decision would have reached the same conclusion, the very same test, in fact, that your Honour Justice McHugh applied in Suresh - and I can take your Honour to that - when considering analogous but not directly on point considerations.

If it were otherwise, where is the limit? I mean, I know it is said that there is no floodgates argument here, but is it truly the case that every decision that is made by counsel in relation to whether evidence is admissible or not admissible, which may or may not be important to an appeal, can be second guessed on appeal on the basis that he could have objected to the evidence, but made a decision not to. Let us look at the importance of the evidence. Does that therefore oblige in future trial counsel to take the point in front of a judge, run a voir dire which may be extensive, despite the fact that he is of the view, firmly of the view, that the evidence is inadmissible? That, with respect, seems to be contrary to the interests of justice. With respect, if that is the thrust of the decision of PKS, it is wrong. If that is the decision in New South Wales and that is the way they want them followed, those decisions are just plainly wrong.

GUMMOW J: There is a whole body of jurisprudence in the United States, particularly in death penalty cases, under the rubric of due process where they get right into these sorts of matters. I am not saying we should follow it, but it does exist.

MR BLACKMORE: No. I will be referring to a Canadian decision which applies a US decision of Strickland and they apply a much more structured approach to this. I am not, in saying that, being critical of Birks' Case. We are governed by the legislation that we have which says the court is to consider a miscarriage of justice and, therefore, one has to consider whether or not in the case there was a miscarriage of justice. But, in our submission, you reach that conclusion by looking at what happened in the case that brought about the alleged error, mistake, and why it occurred.

In the respondent's submission this case involved no more than a tactical or forensic decision by counsel. The evidence available at the Court of Appeal and the additional evidence on the appeal does not support the conclusion that the decision was not one that was reasonably open to a competent counsel. We support the appellant when he says that our system of justice does depend upon there being a competent counsel in court.

Again, some of the authorities from overseas deal specifically with this point and it could be looked at in this way. Whilst there may be no direct entitlement to counsel in Australia, if counsel is representing the accused in a case it should be presumed, almost as a matter of law, that he is competent. He, in effect, sits for the accused in the case. He makes decisions that the accused would make, on his behalf, and therefore if he makes decisions about the tendering of evidence he makes them, as it were, sitting in his shoes.

If, though, he is not competent or his decision in relation to the evidence is not a competent one, there can be seen that the accused is, in effect, abandoned by his counsel in that respect and his decision not to tender evidence in that respect could be analogised with fresh evidence because the opportunity for him to tender the evidence was taken away by the incompetence of counsel.

Now, I know this, in a sense, is the same argument that the appellant was putting here but it is also an argument that is supported by the overseas authorities. We say that, in other words, the trial of the appellant here was not an unfair trial. We accept the Ratten test that the appellant seeks to press upon the Court. We accept the case of Scott and I will go to it in detail. Rather though, in this case, it was the trial that he sought because the decision which is said to be an erroneous decision is not vitiated because it cannot be said that some other reasonably competent counsel in the shoes of this counsel, and knowing what this counsel knew and based upon the evidence in this case, would not have done exactly the same thing.

To make good those very propositions I need to take the Court to a series of authorities and I want to start with the New South Wales decision of Birks. Your Honours are familiar, I know, with this case and I do not want to go through all of the propositions in the case. They are actually set out in our written submissions, but if I could take the Court to page 683 of the decision between lines F and G, this is the proposition that your Honour the Chief Justice was making before to the appellant:

a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted.

If what was involved here was, in effect, a discretionary decision by counsel, then the accused must accept that that was the decision that was made.

Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics.

It can be acknowledged at this stage that counsel here had to make a difficult decision.

His initial approach was: "I will have a joint trial, allege joint concoction". Some time before the trial, in fact some weeks before the trial on 30 April - the trial was on 11 May - the Crown wrote to the appellant's solicitors and informed them that it would be a separate trial in their view, did they have any submissions to the contrary. Therefore, at that point counsel had to be thinking about whether or not he would make an application to try and rejoin the trials and "what the effect of this may have on my case". We know what decision he made.

We know that he made a decision not to seek such a rejoinder. We know that he made a decision, a concomitant decision, therefore that he could not raise character in the case.

If I could go further on in the judgment, and perhaps your Honours have already got to it, but it is at page 684. A paragraph which commences:

It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to the instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately or accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious.

Those are propositions which the respondent supports. However, they do not necessarily go on to address the final issue about how do you look at the conduct of counsel. On the next page, 685, three propositions are set out, and they are commonly known propositions and I will not - - -

GAUDRON J: Could I just raise a possibility with you in the context of what was there said by the Chief Justice. It may be that the problem is more in identifying what can be said to be a miscarriage of justice in these cases than in finding a formula with respect to counsel. I think that is where Justice Hayne took the matter up with Mr Game really very early in the proceedings. There is some difficulty about saying, in this context, that you have lost a chance of acquittal that was fairly open.

There must be some other test if you are in this territory but it cannot simply be that things might have been different if my aunt were my uncle or that sort of thing. There has to be some other test and that is where the problem seems to be.

MR BLACKMORE: This case will not answer every proposition where miscarriage - - -

GAUDRON J: No, but what is the test you see in the new evidence cases where it goes something like that the evidence would have been believed? You look to see whether the evidence would have been believed or is likely to have been believed and so on.

MR BLACKMORE: Taking Graham, an example which was given to your Honours, Graham was a case where there was an error of law. The Court held that the complaint evidence should not have been admitted because of the time factor involved. Therefore, having reached that error, you then look at the effect of the evidence in the way in which it was looked at in this case. In our case though, the vitiating error is the conduct of counsel.

When I say this case will not answer all cases, there are other cases, for example, Grey was an example we recently looked at where there was some behaviour on behalf of the Crown Prosecutor which led to some evidence not being led in the trial. It is a different concept and under no circumstances should the accused be held to answer for something that the Crown did but where the conduct is the conduct of his own counsel and where it is conduct which is subject of free choice about which it cannot be said that it was incompetent or unreasonable, we say the vitiating factor does not arise. Therefore, you do not get to look at by reverse osmosis the way in which the appellant wants to be looked at here: "I didn't get my evidence before the court".

HAYNE J: "Miscarriage of justice" may be an expression of such breadth that one should not attempt to define its boundaries. That being said, it covers at least, does it not, cases in which you can say that the process at trial miscarried and, in considering whether there is a miscarriage, you may have regard to - probably you have to have regard to - the effect of that departure from process. But miscarriage also extends to cases in which there is no error at trial but subsequently discovered material would bear upon the result obtained at trial.

That suggests that there is no single unifying thread in the expression "miscarriage of justice" beyond that which appears from the phrase itself. But here where we are concerned with events at trial at least an important element in that inquiry is to have regard to the process that took place, a process that is premised upon an adversary system, an accusatorial system, and in a case at least where the accused is represented, a process that assumes that it is for the accused or the accused's counsel to assemble the evidence that is to be led or not led. The hesitation that is found in the cases about inquiring into why evidence was led, was not led, et cetera, may perhaps be partly explained, perhaps wholly explained, by the difficulty the courts feel about knowing that they have a sufficient factual base for deciding why evidence was or was not led. Whatever is said after the event is coloured by the event and it is only in some cases that courts may feel comfortable about saying the reason it was not led was that there was an error of such a kind that we will characterise it as miscarriage of justice. That is a very longwinded statement, Mr Blackmore, but - - -

MR BLACKMORE: If I followed it completely, then I accept it, your Honour. I think it is consistent - - -

HAYNE J: That is having two bob on each horse in a race, Mr Blackmore, but that is what counsel are paid for.

GLEESON CJ: To it, you might like to add what Justice Wood said in this case of PKS in the Butterworths edition that we have, on page 8 in the first sentence of the last paragraph on the page which ties in with what Justice Hayne was just saying about the adversary system.

MR BLACKMORE: It ties in with the circumstances of Birks which your Honour has already pointed to. The Court could clearly see what happened in that case. It is very important - - -

GUMMOW J: Just remind me what the criteria is as to the significance of new evidence by which its weight is assessed.

MR BLACKMORE: New evidence - - -

GUMMOW J: What do you ask about it?

MR BLACKMORE: It will be admitted, or fresh evidence will be admitted, in cases where it could not be discovered at trial - - -

GUMMOW J: And - - -?

MR BLACKMORE: And in exceptional cases where the evidence would - it is my understanding and my friend would correct me - but - - -

GAUDRON J: There was a test applied to the evidence. It is likely to have been accepted.

MR BLACKMORE: No, a significant possibility that it will lead to an acquittal, as I understand it. That is the exceptional aspect. When the evidence is not fresh but some are entitled to this new evidence, it is where the evidence will lead to a significant possibility of an acquittal.

GLEESON CJ: And it is the duty of the appellate court, in looking at the evidence, to consider its cogency.

MR BLACKMORE: Correct. So, if, for example - and if I can give a practical example and maybe end on this: counsel, to bring counsel into it, may have heard about the fact that the accused said that he was overseas at the time of his trial; he makes no further inquiry about it; after the trial evidence which is uncontrovertible comes forward that, in fact, the accused was not at home, he was away.

GUMMOW J: Do those ideas have any role to play here?

MR BLACKMORE: In a sense they do and that is why I have tried, probably not very clearly, to explain before my understanding of the way in which the - - -

GUMMOW J: In construing this particular application of 6(1) of the Criminal Appeal Act. That is what we are doing.

MR BLACKMORE: Yes, it does, your Honour.

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

MR BLACKMORE: It is a convenient time, your Honour.

GLEESON CJ: We will adjourn until 2.15 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

GLEESON CJ: Yes, Mr Blackmore.

MR BLACKMORE: I might move on to now look at the two overseas decisions that I refer to. The first one I want to take the Court to is a Canadian decision of the Supreme Court. The case is called GDB v The Queen [2000] 1 SCC 520. This was a case involving an allegation of sexual assault - I will just introduce it this way - where it was suggested that a tactical decision was made by counsel not to lead evidence of an audio tape conversation between the complainant and her mother in which the complainant said she had not been interfered with by the accused. That was the premise that this ground was raised on. If I could take up the consideration of this case at page 530 - - -

HAYNE J: This was a new evidence case?

MR BLACKMORE: Yes. In effect, yes.

HAYNE J: Well, I am looking at 523, the second paragraph of the judgment.

MR BLACKMORE: The short answer to your Honour is yes. In our submission, it is not necessary to go into detail on the facts here, but it is the approach that the court takes that I want to just take your Honours to. Those principals commence at page 530 in the left-hand column:

(1) Introduction

While the early history of the common law shows that society had little interest in permitting anyone charged with a felony the assistance of counsel, times have changed.

Today the right to - - -

GLEESON CJ: I am sorry, just before you start reading that. What is the significance of that heading "Effective Assistance of Counsel"? Is that related back to some principle earlier stated?

MR BLACKMORE: I understand it relates to a case called Strickland v Washington, which is a United States decision. It becomes clearer as we go through the principles, your Honour.

GLEESON CJ: I just wanted to understand how we plunge into this concept of effective assistance of counsel. Is it relevant to the principles according to which fresh evidence - - -

MR BLACKMORE: Yes. In our submission, yes, it is, your Honour. Reading on:

Today the right to effective assistance of counsel extends to all accused persons.

That may not be the case in Australia but there is no relevant distinction in terms of this case in relation to that. If I can just read on, on the next page:

The value of effective assistance of counsel is apparent, but was fully explained by Doherty J.A. in R v. Joanisse -

I will not read the next paragraph. There is nothing in there that we disagree with.

GLEESON CJ: Just a minute. It comes from the Canadian Charter of Rights and Freedoms, does it? I think we need to know if we are in an area of jurisprudence that is based upon that Canadian Charter.

MR BLACKMORE: All right. I will see if I can get that answer for your Honour. I do not know that I have that answer.

GLEESON CJ: Yes. Well, it looks as though the Charter confers, either directly or indirectly, what they call "a right to effective assistance".

MR BLACKMORE: Yes.

GUMMOW J: Anyhow, they give content to it by coming back to the notion of miscarriage of justice at the top of 532.

MR BLACKMORE: At 532, yes, your Honour. In essence, that is what we say. The case is relevant in relation to a discussion about miscarriage of justice.

GUMMOW J: No. It helps - - -

MR BLACKMORE: I am sorry that I do not have the answer to your Honour the Chief Justice's immediate question.

GUMMOW J: Now, what was happening in Strickland?

MR BLACKMORE: Can I just address this case first, your Honour, then I will take your Honour there. The bit that I wanted to read from it is at page 531, towards the bottom of the page, which appears to be a quote from Doherty J in Joanisse and it is this:

Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice . . .

The approach to an ineffectiveness claim is explained in Strickland v. Washington, [1984] USSC 146; 466 U.S. 668 (1984), per O'Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel's acts or omissions constituted incompetence and, second, that a miscarriage of justice resulted.

Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.

Miscarriages of justice may take many forms in this context. In some instance, counsel's performance may have resulted in procedural unfairness. In others, the reliability of the trial's result may have been compromised.

In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow.

The reason that I take the Court to this is the emphasis that that court places upon the determination of the conduct of counsel.

HAYNE J: But what is the significance of the reason for the miscarriage? If the relevant statutory criterion with which we are concerned is miscarriage, what is the utility, what is the purpose of inquiring into the reason? What is that shedding light on?

MR BLACKMORE: Yes, I repeat the submission I made earlier and it may not be clear but, in our submission, underlying our law here, our system of justice is a presumption of competence of counsel.

McHUGH J: Yes, but part of the problem about using a case like this is that it was a decision on section 683 of the Criminal Code and it used the term not "miscarriage of justice" but "the interests of justice" and this appears at 529 of the report. His Lordship says:

The interests of justice referred to in s. 683 of the Criminal Code encompass not only an accused's interest in having his or her guilt determined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to that integrity.

Now, maybe the same considerations apply, but you are dealing in a different context and I am not sure that you can take - - -

MR BLACKMORE: Take it too far in that respect.

McHUGH J: No.

MR BLACKMORE: Well, your Honour could well be right that I cannot overstate the proposition. It is really merely to demonstrate how other courts in other jurisdictions have dealt with it.

McHUGH J: If you can take into account the integrity of the criminal process as an important element in determining whether there has been a breach in the interests of justice, then you might take a harder line in respect of counsel's errors than you might under a miscarriage of justice provision, maybe not, but - - -

MR BLACKMORE: It would still seem that the end of the result is the Court of Appeal has to be satisfied that there was a miscarriage of justice in Canada just as much as there is here. In a case of Fleming we examined all the material that was put before this Court in relation to comparable provisions in Canada and my recollection was that they are in the same terms as our section 6 in relation to determination of appeals.

I take the point that this case may turn, to some extent, upon an examination of the statute in relation to ineffectiveness of counsel because counsel is provided for in Canada which does not apply in Australia. The next case I wanted to refer to was a case from England - - -

GUMMOW J: Are you taking us to Strickland?

MR BLACKMORE: Not at this time, your Honour. I can do that. In all honesty I had not planned to but I thought the Canadian decision covered the submission I wanted to make in relation to that and, again, it is a closer jurisdiction to Australia. The decision is R v Martin [2002] 2 WLR 1.

GLEESON CJ: Thank you.

MR BLACKMORE: If I could take your Honours to page 10, paragraph 39:

The essential thrust of Mr Wolkind's argument is that in order to achieve the maximum support for Mr Martin's defence of self-defence, and to defeat the prosecution's suggestion that he was already downstairs lying in wait for the two burglars, it was crucial to establish if at all possible that Mr Martin fired the shots, or at least the first shot, from a position on the stairs. But while Mr Martin gave evidence to that effect, and maintained his position throughout cross-examination, it is complained that leading counsel failed to challenge Fearon about his evidence as to where Martin was when he saw him in the flashes from the gun, and in particular failed to cross-examine upon the version he had given in his interviews and witness statements given to the police before he revisited the farm.

Just moving on to paragraph 42:

Criticism about the presentation of the defence generally ignores what was plainly a very difficult dilemma which faced the defence team. Mr Martin was asserting that he had fired all shots from the stairs and had never descended to the ground floor at all. The expert evidence was at one in concluding that that account was untrue. If counsel, in presenting his client's case had emulated Mr Martin in sticking doggedly to that account, there was the high probability that the jury would not accept that Mr Martin had fired the first shot from the stairs in self-defence, since after doing so he would have had to climb over the gap at the bottom of the stairs, move into the breakfast room, reload and fire twice more. Such a scenario, with its implication of pursuit of the burglars, would have been destructive of the defence of self-defence, and highly suggestive that Mr Martin was bent on revenge. Accordingly, it seems to us, counsel was entirely justified in seeking to gloss over the difficulties caused by his client's own evidence and to accept, as the prosecution were prepared to do, that the indications were that all three shots had been fired from the ground floor. Such an approach would eliminate the element of pursuit, and so support the defence of self-defence.

GUMMOW J: Were they construing the English Act of 1907? They keep talking about the safety of the conviction. Is that statutory language?

McHUGH J: Yes, that would be in the 1968 English Appeal Act. It is an actual ground, I think, is it not?

MR BLACKMORE: Yes, it is, and I think that Act has subsequently changed.

McHUGH J: Unsafe and unsatisfactory, I think from recollection, is a ground in the 1968 English statute.

MR BLACKMORE: There have been some substantial amendments since then to that legislation.

GUMMOW J: I do not know what this case decides.

MR BLACKMORE: I want to go on and just address two aspects of it. The case is perhaps the most modern or most recent application of the law.

GUMMOW J: But what is the principle?

MR BLACKMORE: Well, perhaps it does not show any principle; perhaps it just sets out those principles.

GUMMOW J: Well, why are we bothered with it?

MR BLACKMORE: Well, if I can just perhaps show your Honour why. At the bottom of page 11 the court there sets out what it says is now the clear position of the law in England.

GLEESON CJ: And then he says on page 12H they "apply a Wednesbury test".

MR BLACKMORE: Correct.

GUMMOW J: Yes, exactly. That is a bit of a surprise.

MR BLACKMORE: And that is the reason that I refer to that case to apply the Wednesbury test, although it said that it did not do so conclusively; it did not have to decide whether or not that was the appropriate test.

GUMMOW J: Are you saying that is what we should be doing?

MR BLACKMORE: That is our principal submission, your Honour, that we should be reaching a position where we can say, was the decision of counsel one which no reasonable counsel could have made - - -

GLEESON CJ: Which decision?

MR BLACKMORE: The decision whether or not to call evidence of character. That is the decision that was made.

GLEESON CJ: Well look, you are inviting us to follow a Court of Appeal decision in England which said, "This is all terribly difficult and we are expressing no final and concluded view on the subject, but this is what is convenient in this case".

GAUDRON J: I just do not know why we ever get into incompetence of counsel or other - it seems to me we have to be looking as to what is the miscarriage of justice.

MR BLACKMORE: That is true, your Honour, but the difficulty is, as I perceive it - - -

GAUDRON J: There has to be some step or process which, had it been taken, would have - and that is what I am looking for.

MR BLACKMORE: Well, our submission is that you do not get to a step or you do not get to - - -

GAUDRON J: But why not, because the Criminal Appeal Act says for any other reason? What is to serve for any other reason?

MR BLACKMORE: There was a miscarriage of justice.

GAUDRON J: One is looking either to a step that was taken in the trial or was not taken, which, had it been otherwise - - -

MR BLACKMORE: It has to be - - -

GLEESON CJ: The argument against you must ultimately be, must it not, that the absence of evidence of good character from this trial resulted in a miscarriage of justice?

MR BLACKMORE: Correct.

GLEESON CJ: Well, then the ball goes into the other court. On the face of it the absence of the evidence of good character was because counsel for the accused did not call evidence of good character, and then your opponent says, "How come?"

MR BLACKMORE: Our response is twofold: number one, "If the onus is on you to show how come", not the respondent - and this case could be honed down to say, "Let's look at the evidence here and to see whether or not there is an explanation" and I will come to that, but the way in which the ground is phrased, that a miscarriage of justice was caused by the failure of defence counsel. Well, is it a failure if he elects to make a decision which was open to him which, perhaps, other counsel may have made a different decision but it was open to him on the material to make. How was that a failure? It may involve even a question of misjudgment ultimately.

McHUGH J: But it is difficult to see any rational reason why counsel would not have sought a ruling in this case. Where that leads is another matter, but at the moment I cannot see why any rational counsel would not have sought the ruling.

MR BLACKMORE: I accept that I have to confront that issue and if the Court were to conclude that, that I think that is an appropriate application of the test.

GLEESON CJ: I am sorry. That is why I asked you before what was the decision. The relevant decision was not the decision whether to seek a ruling. I thought you said the relevant decision was a decision not to call the character evidence.

MR BLACKMORE: Correct.

GLEESON CJ: So, what you have to ask on your earlier submission is, could any rational counsel have decided not to call the character evidence?

MR BLACKMORE: Yes.

GLEESON CJ: It is necessary, is it not, to identify what is said to have given rise to the miscarriage of justice, and the process of reasoning that is said to be erroneous is at some stages removed from the actual relevant decision, the relevant fact being the absence of character evidence.

MR BLACKMORE: Yes.

GLEESON CJ: That is the fact, the circumstance, that is said to give rise to a miscarriage of justice. In other words, from the point of view of Mr J, he says, "What went wrong with this trial is that I was not given the opportunity of relying on my good character before the jury".

MR BLACKMORE: And, in our submission, it is his decision not to call evidence of good character that must be examined and when you examine that decision in detail in as much of the material that we have in the brief it cannot be shown or said that that decision is incompetent, for want of a better term, or one that some other competent counsel could not have reasonably arrived at, given the same circumstances.

GLEESON CJ: How can we decide that? If you are putting this Wednesbury reasonable test up, how do we know what would have entered into a reasoning process of competent counsel on the question whether to call evidence of good character? We know part of it.

MR BLACKMORE: Yes.

GLEESON CJ: In the present case we get a snippet of information. We get the information that it did not occur to counsel to seek a pre-trial ruling, but that is a long way short of the whole story as to how it came about that there was no evidence of good character before this jury unless you reach the conclusion reached by Justice Adams that if an application for a pre-trial ruling had been made, the consequence would have been that this character evidence would have been in because it would have been let in risk free, that is, in the absence of any evidence of K.

MR BLACKMORE: Yes.

GLEESON CJ: But short of a process of reasoning like that, how do we have before us or how did the Court of Appeal have before it all the information relevant to a judgment as to whether, if the trial had been conducted competently, the character evidence would have got in without the evidence of K?

MR BLACKMORE: The short answer is there is not sufficient material or evidence and that is a glib response from a respondent in a sense because it is not our onus. The onus is on the appellant to show there was a miscarriage of justice.

GLEESON CJ: But is it not a problem that is always going to arise if you apply the Wednesbury test? In how many cases is an appellate court going to be in a position to form a judgment about whether or not an ultimate decision was the one that no reasonable counsel could have made? In most cases you would need to know what is in the barrister's brief, would you not?

MR BLACKMORE: In many cases that would have to be right. Some cases will be clear on what happened at the trial; Birks is perhaps an example.

GLEESON CJ: If that is the test, the application of the test in practice is going to discriminate irrationally, I would have thought, between cases in which the appellate court can find itself in a position to make that judgment and cases in which it cannot because, for example, it does not have access to information that any counsel would have needed to make the decision.

MR BLACKMORE: In a sense - again, this may glib - but the answer is that the evidence is for the appellant to put before the court.

GLEESON CJ: But it has to be tested.

MR BLACKMORE: And presumably it will be led in the interests of the appellant, in which case it will be possible to get evidence from the defence counsel, one would assume, as to what was in his brief and what considerations that he undertook. The fact that it was not done here is a problem. I accept it is a problem, but not for the respondent, it is a problem for the appellant. Part of the problem was the way in which the grounds were framed in the Court of Criminal Appeal where they disavowed an approach that has to look at the conduct of counsel, and approached it on this "throw it up in the air" approach: "It is a miscarriage of justice because we did not get to run evidence of good character".

So whilst I appreciate what your Honour is saying, it is possible if the test is made this way to concentrate the mind upon that is the issue that has to be addressed: was there an error made by counsel? In our submission, it is not possible to simply look at the result in hindsight and say, "No evidence of good character was led and, therefore, we don't care what counsel says about the matter, good character is so important in a case, particularly of this nature, that it ought to be led in all cases and, therefore, there must have been a miscarriage of justice".

All that has happened in that case is he has made a choice on one occasion to not run good character and hope that he can succeed in that way without taking the risk in relation to K's evidence and/or go before the court and then say, "Well, in hindsight, I shouldn't have taken that risk. I should have taken the other course". With respect, these are the difficulties that your Honour referred to in Birks' Case, that it is very difficult to formulate any exact proposition or test that will apply in these circumstances. Sometimes it will be obvious, but in cases where there were choices to be made by counsel, difficulties arise and it is difficult to submit more than we have to address the matter in the way in which our criminal justice system applies.

HAYNE J: Would you accept that there was a miscarriage of justice if the appellate court were persuaded: one, evidence of character of the accused might have affected the outcome; two, the Court were positively persuaded - and let us leave aside to what degree -that counsel should have led the evidence in this case? If persuaded of those two matters, should an appellate court conclude miscarriage of justice?

MR BLACKMORE: Yes, I think I would accept that, because in effect what is being said by the court is that counsel made an error not to call the evidence.

HAYNE J: The focus on error may distract attention.

MR BLACKMORE: But it is a necessary flipside of what your Honour has put to me, with respect.

HAYNE J: Focusing on the negative may lead us into difficulties. That is the requisite test may be not "why did counsel not" but "was there any explanation for not doing so?".

MR BLACKMORE: Providing, when it becomes a question of evidence, reasonable inferences can be drawn from what happened. I think that would be an appropriate way of looking at the matter. We say, for example, in this case reasonable inferences are available as to why reasonably competent counsel would not have pursued this course.

HAYNE J: Miscarriage on this analysis, in circumstances of this kind, focuses on the result. Not on the process that arrives at the result but looks, to use formal language, the safety of the result as it were. "This man should have had a trial in which character evidence was led that might have affected the outcome." Or is miscarriage to be looked at differently?

McHUGH J: It may be that it is all in the content of "should have".

MR BLACKMORE: Yes, that was my difficulty with it.

GLEESON CJ: And you may also need to consider as a qualification - and maybe that is the proper order of consideration - whether or not the absence of the evidence was the result of a tactical decision by counsel.

McHUGH J: If you tested it - and this may have something to do also with evidentiary onuses. Supposing this point about ruling and never been raised as a ground itself. In the Court of Criminal Appeal Mr Game had said, "Look, here are these four statements of good character. They were never led in this particular case and they might have affected the result". Prima facie, miscarriage of justice." Crown says, "Just hold on a moment. We would've led the evidence of K." Here is K's statement. No self-respecting counsel is going to lead that evidence. That is the rejoinder or, as the Chief Justice said would be, "Yes but you could have got a ruling about it".

MR BLACKMORE: You could have sought a ruling, but - coming back to were you obliged to do so, "And if you were not obliged to do so, having already yourself made a decision" - I must say this is difficult because here was a decision that you had to make about this ruling - assuming that he understood about making an application for ruling - where a vast amount of additional evidence would need to be called. If counsel had already formed the view that despite whatever he called the judge was likely to rule the evidence of K admissible, he is applying for that ruling and not really believing that he is going to get it, spending a great deal of court time and expense, maybe his own client's expense - we do not know what the circumstances there were. There were other penalties here involved as well, and I know I keep bringing these back to the facts of this case, but it is perhaps easiest to think of it this way.

There were many factors that are relevant to this decision, factors even as extraneous as who the judge was; what were the circumstances of the sittings. But more particularly here, he had two complainants. They were going to be in separate trials. K's evidence was in a form that the Crown Prosecutor was concerned about. Is counsel entitled to look at his client holistically and say, "I want to do the best for my client", or is the court then confined to looking at this case and saying, "In relation to this case, the best thing to do would have been to lead good character evidence"? In our submission - in a sense almost always were- I have not any answer to this - surely counsel is entitled to look at his client holistically when he comes to make a decision about whether to expend time, expense, inconvenience to the court, and he is entitled to say, "I don't want to get into K's evidence and have her evidence explained in detail. I don't want to give her a review of my cross-examination in advance when I've already formed the view that I don't want good character evidence in the case". These are the difficult issues that underlie the proposition and the problem is that we do not have enough evidence.

GLEESON CJ: There is one gap in the evidence. I do not know whether this was mentioned in the Court of Criminal Appeal, but there is nowhere in the affidavit of this counsel that says that if it had occurred to him to seek a ruling, he would have sought one.

MR BLACKMORE: Correct. He is very specifically actually about what he does say. This is what he in fact says: "At the time of the trial I didn't form a view that I would seek a ruling". I have actually misquoted that. I should probably quote that accurately. It is on page 147, paragraph 13 of his affidavit. It says:

It did not occur to me at the time of the trial to seek a ruling from the trial judge on the question of whether the Crown would be permitted to call evidence in reply should the character evidence be adduced in the appellant's case.

That is one very particular aspect of the analysis, but it certainly does not cover the field by any means. Given that he was advised in a letter two weeks before the trial - this is at page 197 - that the Crown was going to take this course of separating the two complainants and therefore counsel's initial plan to run joint concoction, it would not be effective unless he made some application and he was invited to, to speak to the Crown about it, but chose presumably not to do so - - -

GLEESON CJ: I think Justice Hayne pointed out very early this morning that even seeking a ruling if it involved a voir dire was not itself a risk-free course from the point of view of the accused.

MR BLACKMORE: Correct. Again, that is the thrust of our submission. There were risks in all aspects of this for counsel, not just making the ruling. This is the aspect that your Honour said earlier, that there was no risk in making the ruling. There were risks involved in making the ruling. Are we truly going to invite counsel to seek such a ruling in every case? That would be the implication here. Even when counsel forms an independent view, competent counsel - in BRS, I think it was a very senior counsel formed the view that they would not pursue this issue.

Are we to second-guess that and say, "No, you must seek the ruling", and then flow on from that, have all of this evidence led in this voir dire, which would have involved a large amount of the evidence, if not more than the evidence in the trial, without having any regard to the general interests of justice in having the trials finish at some reasonable time, cost to the community, cost to the accused. What if he did not want this? We do not have any affidavit from him. We do not know. That is what I am saying. There is an absence of evidence in relation to this and it is not one of those cases where it is simple and one can simply look at the result and say that the result is so ridiculous or so absurd that it could not possibly be an appropriate decision of counsel.

I wanted to go on and just refer, briefly now because I think the ground has been covered, but in relation to what counsel did know when he was making the decision that we know he did make and that was not to call evidence of good character. What he did know and he did have was the brief of evidence and in that respect he did have the statement of K and bearing in mind that the only way that this evidence would be excluded was, in effect, by reason of a discretion under section 135, 137, he had to make prediction as to whether that evidence would be admissible or not. Remembering this, that K, at the time that he was looking at her statement, at the time of the allegations, was a 7-year-old girl.

It is suggested in his case - this was his case, he was going to put concoction, joint concoction, that is, in effect, she made it up. He could put these things but in doing so he would he have to be conscious of what she says. She goes into quite some detail at a police station, apparently independently, on her own, to provide details - not with her brother sitting there in some joint concoction fashion to the police - a 7-year-old girl provides these details to the police. Is the judge going to say the jury could not accept this because it involves joint concoction or is he going to say the jury can make their mind up about this. She provides a lot of detail in this statement. The suggestion is she has made it all up. Could a 7-year-old girl in those circumstances really be expected to recollect all of these details, independently, in circumstances where she is just making it up? She adds material that is difficult to understand in those circumstances. Why would she make the material up? Why would she make up the material about the dog was approaching her at the time when she was being assaulted by the accused? Why would she make it up? What is the point of it? It is not responsive to the questions being asked by the police.

There is a flip side to this, of course. The accused could argue that was consistent with something that the other complainant said. But these are the considerations that both counsel, and ultimately the judge who was asked to make the ruling, would have to have in mind. When we come to consider the probative value of the evidence, this evidence was about the same sort of thing as was alleged by the other complainant so the probative value is high, higher in this case.

In addition to that we have section 95 which my friend has referred to which says, in effect, in our submission, there is a statutory prohibition against using the evidence as tendency evidence and we say that removes substantially one of the areas of unfair prejudice, that is, that you would use the evidence in a tendency way, "We believe K, therefore we do not really have to think very much about seeing C's evidence. He had a tendency to do this sort of thing and therefore I will accept it". Section 95 excludes that and then section 136 of the Evidence Act specifically says you can limit the evidence.

I raise these issues because they are issues that would be in the mind of a competent counsel reaching a conclusion as to whether or not to proceed with running an idea in relation to this good character evidence. They are independent matters which are available to a competent counsel to consider. They are reasonable inferences, we would say, from the evidence.

All of them, in our submission, are adverse to the proposition that he had to run such a voir dire. In other words, we submit that another counsel in his situation could equally have arrived at the same conclusion, "I am just not going to waste the time with this, because it is going to involve a lengthy voir dire of over a whole lot of witnesses. I am going to have to review my cross-examination with K. I have another trial in the wings. If I give her all my cross-examination now she will be pre-prepared for that trial. There is a chance that my client will be convicted in that trial, even if he is not convicted in this trial".

These are the considerations, holistically, that counsel would be entitled, in our submission, to consider when reaching his conclusion and that is why we say it cannot be clearly shown that he made any error or could be said - perhaps putting it as well as I can in the terms that Justice Hayne has put it - that he should have called this evidence, or even, in the more objective or obtuse way, saying it should have been called, because whilst in a perfect situation - and this was far from perfect for him - evidence of character would have assisted his case, this was not such a case for him. There were very difficult choices to be made and it cannot be said, with any degree of safety, that the choice he made was so incompetent, or so outside the realms of competence, that it was one that should not have been made.

We support that in our written submissions by reference to two other cases. They are Court of Criminal Appeal decisions of Purton and Body. I will not take the Court to them. In Purton your Honour the Chief Justice was on the court. In that case there was evidence of a sexual assault, another girl. The allegation was that the bus driver sexually assaulted this girl. There was evidence from another complainant, who did not want to give evidence of a complaint but was available to give evidence at the trial. The allegation there was that counsel was negligent in not calling evidence of good character. The evidence of good character again came out during the course of the sentencing proceedings and - - -

GLEESON CJ: Well, that case just turned on the finding of the facts that there was a very good reason why counsel might have behaved as he did.

MR BLACKMORE: It did, but they are very similar facts, in our submission, to this case. Your Honour concluded with these words on page 5 of the judgment that I have anyway:

I can entirely understand why trial counsel, having that material before him, would not have wanted to be drawn, in any way or to any extent, into the question of the appellant's character.

The case of Body is of a similar kind. I do not need to take the Court to it. I have merely raised those cases to say these are cases where it can be seen that it is not inevitable at all that the evidence of the complainant K would have been excluded and, in the circumstances, these cases were things that were in the mind of competent counsel governing his approach to whether or not to take the voir dire or to apply for voir dire in relation to the evidence.

The other matter that we know that counsel had, because he refers to it in his affidavit, is the case of Harvey. That apparently was referred to him by the Crown Prosecutor. In that case, on the last page of the case, page 38 - - -

GLEESON CJ: Do they have any burglary cases any more?

MR BLACKMORE: I do not think there is an offence of burglary. On page 38 Justice Beazley provides a warning to both Crown Prosecutors and to defence counsel of the dangers inherent in running a joint trial in the manner in which this counsel had previously decided that he would run the case, but again, if it is a case, page 35, where her Honour says this:

In the present case, counsel for the appellant repeatedly disavowed incompetence by trial counsel. Rather, he relied upon the fact that having regard to the evidence which was elicited at trial, particularly that of A and W, the calling of evidence of good character was critical to the appellant's case. The failure to do so caused the trial to miscarry.

Her Honour recites the decision of Birks and then the principles that are set out there:

The material before the court indicates that the appellant's lawyers made an assessment of the nature and extent of the character evidence and its possible consequences, namely, that it thereby opened up the right of the Crown to adduce evidence of bad character and the nature and possible effect of the evidence of bad character that was likely to be called.

With respect, we say that the same can be inferred from here, if not directly, certainly indirectly.

It is evident from the fact that the evidence of good character was not called that the legal representatives considered that the risk in calling such evidence outweighed the detriment in not calling it. Such an assessment was reasonable, even if, as a matter of hindsight, the reverse decision may have proved to be the better tactical course. I should state, however, that it is far from certain in this case that the evidence of good character would have overcome, or even neutralised, the effect of the evidence of bad character, and in particular, the evidence relating to the appellant's conduct with the students, which was available to be adduced if character became an issue in the trial. Because there were such competing considerations in the case, counsel's submission, that the need to call evidence of good character was critical, must be rejected. As the appellant's trial lawyers clearly recognised, there were good reasons not to call such evidence just as there were reasons why such evidence might have been called.

Just for completeness, this case was referred to by the appellant's trial counsel at paragraph 10 of his affidavit on page 147 of the book.

So, again, these were considerations that trial counsel - this was a case apparently that he had prior to reaching the conclusion not to call evidence of good character. Given this material and the warnings contained in this case and the other considerations that I have addressed, we again submit that it cannot be said that trial counsel's decision to not call evidence of good character can be vitiated or shown to be some error on his part.

Now, there are other decisions that we have referred to in our written submissions and I do not need to take the Court to them. In some respects they turn upon the facts of the cases. Even the decision of Robinson, the court there said that the evidence of bad character in relation to the other complainant would almost certainly have got before the jury.

If I can also just remind the Court of what the Australian Law Reform Commission said in its report No 26 volume 1 at page 457 at paragraph 803 when talking about evidence of this kind. It says:

If the accused has led evidence tending to prove that he is not the kind of person who could commit the crime he is charged with, the prosecution must be permitted to rebut this evidence or the tribunal of fact might be left with a totally misleading impression of the accused. In fairness, the prosecution should be permitted to adduce the same type of evidence as was the accused. But the rule, under existing law, that the rebuttal evidence only negates good character without pointing to the likelihood of guilt seems incapable of enforcement. Further, the law's assumption of indivisibility of character which permits the prosecution to adduce rebuttal evidence relating to a `character trait' other than that raised by the accused seems incorrect. Where the evidence of the accused's good character has been confined to his character in a particular respect, the evidence of bad character or prior conviction in rebuttal should be confined to such evidence as tends to disprove his good character in that respect.

It concludes:

Of course, if the evidence tendered by the accused crosses the spectrum of character, the prosecution should be able to rebut both in terms of issue and credibility.

I also point to the evidence of the testimonials that was supplied on sentence and those testimonials do allude to the fact that he was somebody who was safe to be with children. I will take your Honours briefly to page 187, the closing paragraph of that testimonial and 193, the penultimate paragraph of that testimonial.

There were just three other matters that I wanted to touch upon briefly. The question about an obligation of a judge to give a ruling, we have looked at the District Court Rules and cannot find in those rules such an obligation. If a judge is asked and he agrees to give such a ruling, then that is one thing, but it does not appear that there is any basis for saying that he must do so. In fact, even if you go to the case of PKS, the court there does not put it as highly as that.

GAUDRON J: They do speak of an entitlement, though, in PKS, do they not?

MR BLACKMORE: Yes, an entitlement to ask the judge, but of course counsel can always ask.

GAUDRON J: To apply, yes.

MR BLACKMORE: To apply. It does not say that the judge is obliged to give it. Your Honour's point, with respect, is right that you have to look at section 110, the triggering provision, to decide when that will apply and it is only when evidence of character is led that the issue is raised. Now, it is not to say that counsel cannot say to the judge, "I am about to trigger 110, can I get an advance ruling?" and if the judge says, "Yes, I will consider that", that there is any error on his part in doing so.

GAUDRON J: Adduced, "if evidence adduced" - - -

MR BLACKMORE: Yes, I know that that is what one would - - -

GAUDRON J: - - - "has been admitted" and does that cover - I do not know, I suppose it does, does that cover cross-examination which results in the police officer saying, "Yes, no other convictions"?

MR BLACKMORE: It would be adduced by the appellant's counsel in those circumstances, so yes, I would submit yes. He is seeking the evidence, he is adducing the evidence from that officer.

GAUDRON J: Then it says, "has been admitted".

MR BLACKMORE: I accept that, but that is the triggering mechanism. If counsel goes to the judge and says, "I am about to trigger this under 110, I know I have not done it yet, but I am about to do it, would your Honour agree to provide a ruling?", the judge, as your Honour rightly says, in our submission, could say, "No, go ahead and let us see how the evidence falls out and we will deal with it then."

GAUDRON J: What happens in practice?

MR BLACKMORE: In practice?

GAUDRON J: I mean, I know what used to happen in practice, you took the risk.

MR BLACKMORE: Yes, you did and there was a series of cases: Hamilton was the start of them in New South Wales were Justice Kirby said the risk of that is so monumental for the appellant, that it is necessary that you approach the Crown Prosecutor to find out what other evidence he has if you are going to enter upon that risk. But it is not to suggest that the judge in any of those circumstances is obliged to give the ruling. He may do so or he may not.

GLEESON CJ: He may give it in qualified terms.

MR BLACKMORE: Yes, that is right. He may do it in qualified terms, and say, "I can't give you an absolute ruling. It will depend. But if you want my preliminary view based upon the limit of material you have showed me, or what you want to lead now, my view may be this." The difficulty for the appellant is of course he cannot govern what the Crown Prosecutor will do. He cannot say to the Crown Prosecutor, "Well, I only want you to tender the statement of K." The Crown could say, "No, my best case is her evidence. I am not going to just have that decided on some piece of paper. I want to call her evidence. I want to call a voir dire. I want to have this evidence tested. I want you to put it to the other complainant in fairness to him. You say it is joint concoction. Why shouldn't he be allowed to be heard? I want you to put it to the mother. What were the circumstances? I want you to put it to the other witnesses in the cases. It may be you might need to call the character evidence witnesses to see what the probative value of this evidence is, vis-à-vis the unfair prejudice."

We have already hashed this area already, but those are the factors which are going through counsel's mind. He cannot govern what the Crown Prosecutor will do at the trial. He cannot just say, "Well there'll be a limited application and it'll be all over in a couple of minutes".

GAUDRON J: What happens in practice though? In practice, in relation to character evidence of this kind, are advanced rulings sought?

MR BLACKMORE: I do not think that it is possible to say what happens. There are sometimes lengthy voir dires. My friend says they always give rulings. I am prepared to accept that they probably always do, or generally do, even if not always, but how the rulings - - -

GAUDRON J: And they are qualified rulings, are they not? Must be.

MR BLACKMORE: Whether they express them in terms of, "I give a qualified ruling" or not, with respect I doubt that they could be legally bound to that ruling given that they are giving the ruling prior to the actual evidence being heard. If the evidence comes out in some different way, surely they would be entitled to say, "Look, this is not the evidence you anticipated would be led. This is another body of evidence. So my ruling earlier is not based upon this evidence, therefore" - - -

McHUGH J: This seems to be part of the danger of getting these preliminary rulings because they can turn into a trap for the accused. Having set out on a particular course, thinking it is risk free, some evidence is given, the evidence changes.

MR BLACKMORE: I think in practice in relation to trap, at least these days, it would be unlikely that a judge would entrap an accused.

McHUGH J: I am not talking about entrapping, but what happens if some witness suddenly - take the witness, what was his name? Mr Debrincat, at page 193. Suppose he was expected to give just general evidence of good character and then suddenly he started talking about how the children's face lit up when they saw him and things of that nature. What is the judge to do? Allow that evidence to stand, or strike it out, or allow the Crown then to lead K's' evidence, or discharge the jury?

MR BLACKMORE: Quite possibly the latter, in which case the whole of the case has been thrown away. Anyway, the Court's is appraised of the difficulties. I do not think there is any practice that says they are always decided on just the papers, in a very quick preliminary way, or whether there are sometimes lengthy voir dires about them. I think it will depend upon the individual case.

McHUGH J: My recollection is that in Stanoevski the trial judge made it plain that it was a provision ruling. I think it was his theory at that time.

MR BLACKMORE: Interestingly, in Stanoevski, as I recall it as well, the judge - he seems to adopt Justice Gaudron's terminology - got down into the arena to a certain extent and said, "Well, you can only lead this evidence but you can't lead this evidence" in order to try and confine the issues that the Crown would lead in reply. I mean arguably that is outside the power of the judge too, if section 110 is triggered, then subject to him making specific rulings under section 135 or 137 about other evidence. Anyway, that is just an observation. There is probably no general practice that applies, although rulings are often sought and given.

GLEESON CJ: Yes it does seem a little difficult to imagine a judge saying in a case such as the present, "If you lead evidence of the good character of the accused, regardless of what that evidence is, I will not under any circumstances permit the Crown to call the evidence of K."

MR BLACKMORE: Yes. Well, other than Justice Adams' decision, I have not been able to find another decision which would be on all fours with that. I mean, factually, all of the decisions have gone the other way.

GAUDRON J: What Justice Adams said, was that referable to 137, I forget or 135 of the Act?

MR BLACKMORE: I am not sure he made that quite clear, your Honour.

GAUDRON J: I mean, I have some difficulty about 135 and 137; I mean I have some real difficulty with the notion that where the probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party, that its admission would not be said to result in a miscarriage of justice and therefore, in essence, be wrong. You see, the old discretion was simply whether its probative value is outweighed.

MR BLACKMORE: His Honour does, in fact, refer to section 135 at paragraph 69 of his judgment at 232.

GLEESON CJ: They are, of course, dealing with slightly different subjects; 135 deals with civil proceedings as well as criminal proceedings and 137 is confined to criminal proceedings.

MR BLACKMORE: Correct. I also note that - - -

GAUDRON J: There cannot be an overlap, can there, with 135(a) at least and 137 in a criminal trial, can there?

MR BLACKMORE: Well the emphasis in 137 is different; it is a compulsory section if you reach that conclusion.

GLEESON CJ: And you do not have that concept of "substantially outweighed"?

MR BLACKMORE: That is right. Interestingly enough, just looking at what Justice Adams said, which seems to be the basis of his decision at paragraph 67, there is certainly an argument that he does not reach the conclusion that there was a reasonable possibility of collusion. What he says, his precise words were:

I think that there was almost certainly a reasonable possibility of collusion -

Now is it possible to rule the evidence out on an almost certainty or do you have to be certain there is collusion? It is "almost certain a reasonable possibility of collusion", so he does not even get to the stage of saying there was a possibility or a reasonable possibility of collusion, just "almost certainly a reasonable possibility of collusion. Maybe it is semantics, but it did strike me that even he in his judgment was not able to say that collusion was a reasonable possibility and that that was the basis for concluding that the evidence should not be admitted.

HAYNE J: But just to go back several steps, just to make sure I understand your contentions, am I right in thinking that a question about the admissibility of the evidence of K would arise if, but only if, the accused had adduced evidence of his good character?

MR BLACKMORE: Yes.

HAYNE J: And that you point to no provision, whether of an Act or rules, that would require or indeed even permit a judge to give advisory opinion about what might be the case if evidence of good character were led?

MR BLACKMORE: I will qualify that by saying I do not point to any statutory rule. I am not suggesting that it may not be implicit in the power of a District Court judge to make such a ruling in the exercise of his jurisdiction, but I do not - - -

HAYNE J: What is the judge doing other than advising counsel? The judge is deciding no question about admissibility. He is simply saying, "Here's a quote on what might happen". If you go back to cases like Sinclair 73 CLR 325 and 326 where Justice Rich talks about voir dires and when they may be held, this is not such a case.

GAUDRON J: One is not ruling on the admissibility of evidence in these cases. What you are asking is, "How will your Honour exercise your discretion if these issues arise?".

HAYNE J: And necessarily you are doing so on an imperfect, very probably incomplete, factual base - imperfect because it is predictive of evidence yet to be given; incomplete for the same reason.

MR BLACKMORE: As a practical answer to this problem - and I accept that it seems to be a problem - it is possible that counsel could have continued his leading of the evidence - and let us assume that he wanted to lead evidence from the police officer - but done so in the absence of the jury and then, having done so, sought a ruling from the judge.

HAYNE J: On what? On the adducing of what evidence? Until the Crown adduced the evidence of K, what is the judge ruling on?

MR BLACKMORE: No, at that stage he would have adduced evidence - - -

HAYNE J: Of character. That I can understand.

MR BLACKMORE: - - - of character. Then the judge at that point could rule upon whether or not - I withdraw that. I see the problem.

GLEESON CJ: It would depend on what the evidence was.

MR BLACKMORE: Exactly.

GLEESON CJ: One of the character witnesses might come along and in the enthusiasm of the moment say, "That man has been a wonderful stepfather to those two children".

MR BLACKMORE: I withdraw what I was going to say. It does not follow from what I was going to say. Each time perhaps this process may have to be gone through.

GAUDRON J: Can I ask a question. The rules under which applications are made, were they all introduced as part of the process for efficient case management?

MR BLACKMORE: They have been in - - -

GAUDRON J: I am surprised by a lot of what I have heard here today. Contrary to what Mr Game said, it does not stem from Hoch, it does not seem to stem from the Act. The only thing I can think of is that all this arises out of the criminal version of case management.

McHUGH J: They have been in for about 20 years or so, have they not?.

MR BLACKMORE: These specific rules have been - - -

GLEESON CJ: Yes, and they were introduced very gradually, were they not? For example, these District Court Rules that we looked at earlier this morning were partly the result of a change of procedure relating to the arraignment process. To put it very generally, part of the object of the exercise was to get as many things decided in the absence of the jury as could conveniently be done, so that you did not have juries being sent out frequently during criminal trials and you had as many decisions as could be made in the absence of the jury made before the jury were empanelled. It even has a name in the Supreme Court of Victoria, which I think is Pegasus or - - -

HAYNE J: Pegasus II.

MR BLACKMORE: In 1995 these rules were introduced but - - -

GAUDRON J: Part 53 was inserted in September 1987. That is all to deal with pre-trial things.

McHUGH J: They were there when I was on the Court of Appeal. I think some of the speedy trial cases came up under these provisions back then.

MR BLACKMORE: Some of them were but it is this specific one in relation to evidence rule 11 that was apparently put into the Act on 8 December 1995.

GAUDRON J: Which one is that, sorry?

MR BLACKMORE: Rule 11. I am only going through the material that your Honour - - -

GLEESON CJ: In relation to a voir dire, for example, they did not want a situation under which a jury was empanelled on Monday and then on Tuesday the jury was sent out while there was a voir dire that lasted until Thursday and then the jury, only having heard five minutes evidence, were brought back in again and then somebody asked another question that was objected to and they were sent outside until the following Monday.

MR BLACKMORE: Yes.

GLEESON CJ: That was the problem that these were intended to deal with, in part.

MR BLACKMORE: Yes, the convenience of juries. The rules themselves are provided for under section 171 of the District Court Act, section 171, "Criminal procedure rules"; that is where they derive from. That section is fairly non-specific about what they will be about although they can provide:

for evidentiary matters in proceeding, including matters relating to the giving of expert evidence - - -

GLEESON CJ: Did the not system involve this change: did they not start arraigning the accused soon after committal and before there was any jury in waiting?

MR BLACKMORE: Yes, often months before and sometimes before - not right now, but years before. Those are our submissions, your Honour.

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

MR GAME: On this question of the obligation of a judge to give a ruling, in the case of Robinson 111 A Crim R 393 Justice Barr at paragraph 42 says, in effect, if the application had been made:

the trial judge would have been obliged to indicate what evidence if any the Crown might be permitted to adduce.

GAUDRON J: Yes, but how is that justified?

MR GAME: Your Honour, as I said before, the process can be seized upon by making the application at the moment that K is called or the process can be seized upon by waiting until the close of evidence-in-chief of the appellant.

GLEESON CJ: Justice Fitzgerald, in the same case, puts it in terms of power not in terms of obligation, if you look at page 393.

MR GAME: Page 393, that is Justice Barr's judgment.

GLEESON CJ: I am sorry.

MR GAME: It says "power" but then it says:

The Crown Prosecutor was wrong to submit that the Court had no power to make an advance ruling.

But the next paragraph says that:

the trial judge would have been obliged to indicate what evidence if any the Crown might be permitted to adduce.

Now, it does not matter, in our submission, that the ruling might have some provisionality about it. The ruling at the moment the calling of K - - -

GAUDRON J: What are we talking about ruling here?

McHUGH J: Advisory opinions.

GAUDRON J: An advance indication of how a discretion will be exercised. I mean, it is not a ruling about the admissibility of evidence, whatever might be the position when you are talking about true admissibility.

MR GAME: It is when K is called. It is at that moment.

GAUDRON J: Exactly. Yes, and if it is objected to - - -

MR GAME: And it is quite unrealistic for the Crown to have said, in effect - - -

GAUDRON J: - - - the judge then has to exercise his discretion.

MR GAME: Yes.

GAUDRON J: Make a decision.

MR GAME: Yes, but the decision might change, but that does not matter tuppence in terms of seizing on the application at that particular point, your Honour.

GLEESON CJ: But the judge in terms of obligation, as distinct from power, does not have to rule, does he? He can surely say, "I'm not going to indicate in advance how I'll exercise my discretion". It may be affected greatly by precisely what is said on this subject.

MR GAME: Well, he has a power but he does not have to rule until the moment the prosecutor says, "I call K", and then he does have to rule. But section 189 of the Evidence Act might be noted here because it uses language which might be suggestive of something wider. It says:

If the determination of a question whether:

(a) evidence should be admitted (whether in the exercise of a discretion or not), or

(b) evidence can be used against a person -

and then one of the considerations is whether it is likely to be prejudicial to the defendant. I would just point out on that that Justice James himself at page 223 referred to the "serious prejudice" that the evidence of K would have brought into the trial.

As I was saying a moment ago, it is unrealistic for the Crown to suggest that this would have arisen by way of cross-examination of the mother. It was quite clear - and this is set out at page 211 - that by the time of trial the mother was completely hostile to the appellant.

In terms of time being lost and so forth, evidence in this case took one day and Detective Rutledge was the last witness in the Crown case, so the whole question of seizing on a ruling which one could oblige the judge to make a ruling, in my submission, is entirely realistic in the context of this case. Now, as I said before, the fact that it may be provisional does not affect its bindingness at that moment. At that moment, it is a binding ruling and counsel takes it as he finds it, so that if he goes - - -

HAYNE J: Could I just take you back to what you said about 189 because it seems to me this branch of your argument is founded on the notion that somehow 189 could have been engaged? What was the fact that had to be found? Section 189 is engaged and 189(1) is engaged where a question depends on finding a particular fact exists. What is the fact here? I can understand a voir dire to decide, for example, whether a confession is voluntary.

MR GAME: Your Honour, this will involve finding lots of particular facts. It would involve - - -

HAYNE J: The admissibility depended, did it not - - -

MR GAME: No, no, it will involve the finding of a particular fact about whether or not, for instance, there was a possibility of infection in this case. That does not mean just a - it is lots of facts, your Honour.

HAYNE J: Yes, but ultimately, the critical thing was the exercise of the discretion.

MR GAME: No, that is quite true, but this section is here about findings of fact in the absence of the jury and the judge has to make some findings of fact and that is why it is there.

HAYNE J: I understand.

MR GAME: Now, when one seizes on this decision not to lead good character evidence, we say that that is not a competent decision in this case because it is a flawed decision because it is a decision not to lead evidence of good character, not having applied to the judge, or not having turned one's mind and it is that flawed decision. We submit, we go so far - - -

GAUDRON J: Now, why do you say it is flawed? I mean, I had always thought that it was indeed part of the duty of counsel to the court to make certain decisions of the kind of which you now speak. You have to be able to point to something else to say it was a flawed decision.

MR GAME: Well, what we say, which I was trying to answer your Honour, but what I was about to say is that there was no rational reason for counsel not seeking a ruling from the judge and none has been advanced.

GAUDRON J: But there may well be.

MR GAME: We said he did not turn his mind to it.

McHUGH J: But that does not mean there was not a rational reason.

GLEESON CJ: And the fact that a decision is flawed does not mean it is wrong.

MR GAME: Well it does in this context, because the procedure for determining the issue that concerned counsel, which is, is K's evidence going to come in, that decision the court provides a procedure for determining that very question.

McHUGH J: But why should you better off with a counsel who does not think about the matter at all as opposed to a counsel who thinks about all the issues but, nevertheless, makes a decision which you can say is so erroneous that he or she has not properly performed a duty as counsel?

MR GAME: Well, because, your Honour, there may be questions of degree, but because the implied authority of counsel is to reason about whether or not to make particular decisions or do particular things and if counsel does not turn their mind to a particular issue then that is no part of the implied - - -

McHUGH J: Yes, but supposing a rational counsel would have said in the circumstances of a particular case, let us say this case, "I am an officer of the court. To adduce this evidence would take up the court's time for a number of days. This application has very little prospects of being granted. This is a legally aided case - - -"

MR GAME: Legally aided and a number of days would not be considerations. Lack of prospects would be.

McHUGH J: Well, in the United States they take the view about funding as a relevant consideration.

GAUDRON J: Similar considerations though might be, "To keep the jury here another two or three days is not going to advance my client's case; to have them waiting around." I mean, one always considered, in the old days at least, the impact on the jury of having them brought in and out and how long they would be away and so on.

MR GAME: I have said this before, but we do not have a considered decision in this case to deal with; we have an unconsidered decision. So we cannot say that the decision not to lead evidence of good character was an informed decision of counsel.

McHUGH J: It seems to me you are trying to advance your position by saying, "This fellow didn't make any decision. Therefore, I'm better off than the counsel who made a very erroneous decision but considered all of the aspects".

MR GAME: Not necessarily. If he made a wrong assessment about the evidence. For instance, in this case the evidence of K, we would say, on its face suggests strong reasons for exclusion, so that is an erroneous decision.

GAUDRON J: What if one comes to the conclusion that the rules did not in any event permit and do not permit a trial judge to give an advance indication of the manner in which he will exercise his discretion even though it has not yet been invoked?

MR GAME: My answer to that is that once the accused is arraigned, there is a power to give rulings about evidence expected to be given in the case.

GAUDRON J: Is that not 11(4)?

MR GAME: Yes, your Honour.

GAUDRON J: What if one takes the view that this - - -

MR GAME: I am sorry, it is done in some jurisdictions without a rule 11. In the Supreme Court in New South Wales it is done.

GAUDRON J: Let us do the District Court. Section 11(1) is to:

order an enquiry by way of a voir dire into the admissibility of any evidence -

That is not what we were talking about. So you go back to 10, "for directions generally".

MR GAME: I am sorry, "the admissibility of any evidence" would include discretionary rulings on admissibility.

GAUDRON J: I do not see why it should.

MR GAME: That section is there for voir dires on confessions.

GAUDRON J: Where do we find - - -

MR GAME: I have just completed a 9-week voir dire in the Supreme Court on a confession.

GAUDRON J: Do not tell me what happens, Mr Game; tell me where I find in the rules the authority for you to conduct your trials the way you do and apparently everybody else does?

MR GAME: Well, you find it in the invoking of the court's jurisdiction by the presentation of the indictment.

GAUDRON J: It is its inherent jurisdiction to give an advanced indication of how you will exercise your discretion if the exercise of that jurisdiction were to be invoked.

MR GAME: Yes, but your Honour - - -

GAUDRON J: Let us go back to the District Court. Is it inherent jurisdiction or implied jurisdiction?

MR GAME: It is implied jurisdiction in the District Court.

GAUDRON J: Implied, so, you can do what is necessary. Does it go beyond that?

MR GAME: I do not think so, your Honour.

GUMMOW J: What happens in the Supreme Court, no rule at all?

MR GAME: There is no rule at all, but voir dires are held - - -

GAUDRON J: Yes, we can have a voir dire, there is no problem about a voir dire - - -

MR GAME: About confessions, about discretion, about all sorts of - - -

GAUDRON J: - - -as to the admissibility of evidence. I mean, it is all - - -

MR GAME: No, not just admissibility in the strict sense; discretionary rulings about - - -

GAUDRON J: But when the discretion has been invoked or before it has actually been invoked?

MR GAME: Quite frequently before it has been invoked, including - - -

GAUDRON J: It looks very much like the trial judge getting down into the well of the court.

MR GAME: Well, your Honour, if it is not done that way what happens is - and this is the problem that confronts the courts - for instance, in a complicated case, and I have experience of one where no jury, before a jury, eight, nine weeks of voir dire. Now you cannot have a jury sitting around for nine weeks while you have a voir dire - - -

GLEESON CJ: I take it the jury had not been empanelled in your case?

MR GAME: No, of course not, your Honour, but an indictment had been presented and this is a common problem and it has been for sometime in the courts and - - -

GAUDRON J: This is the problem that arises. If the problem arises, it arises from the way in which discretions are conferred in this Act, it would seem to me, in the Evidence Act.

MR GAME: Well, yes, your Honour, but can I say this - and I am repeating myself - at the moment the prosecutor says "I call K", you get a binding ruling. It might be - - -

GAUDRON J: Yes, you would get an exercise of the discretion if you invoked it.

MR GAME: Yes.

GAUDRON J: Now, I am not too sure that the expression "binding ruling" - - -

MR GAME: It is for the time being binding.

GUMMOW J: It is provisional.

MR GAME: It is provisional.

GAUDRON J: No, if they said, "Call K" - it depends at the point at which they call K. You would object to the evidence and invoke the exercise of a discretion. Now, the discretion would be exercised one way or another. I do not know when it came to be that the exercise of a discretion got the tag "ruling"?

MR GAME: It is not truly an exercise of discretion, it is a discretionary ruling, but it is not a true discretion. It is a duty that a judge has to exclude evidence if certain identified discretionary factors exist, so it is only called a discretion because there are issues about which minds might differ and in that sense a discretion - - -

GAUDRON J: That is 137.

MR GAME: Yes, but it is not a discretion in any other sense.

GAUDRON J: Section 135 is - - -

MR GAME: Section 135 is a discretion, but it is a discretion so called. If you are satisfied of the factors that favour exclusion, then you must exclude.

GAUDRON J: But you say in this case the discretion that must have been exercised, the relevant section that would have been invoked by the request for a ruling was 137, and then it must be rejected.

MR GAME: Yes, your Honour.

GAUDRON J: Then if it were not under that one, would there be room for 135 to operate?

MR GAME: Yes, your Honour, and then if you left it until the close of examination in-chief of the appellant, then section 112 would bring section 192 into play, which is the provision considered in Stanoevski. That is all I wanted to say about that unless there is some other question.

Your Honour Justice Gummow asked about the decision in Strickland. Could I just refer first to Dietrich 177 CLR in the judgment of Justice Deane. His Honour made an observation about the American jurisprudence at page 333 and his Honour in the second paragraph made the observation that there was a constitutional amendment that related to the right to counsel, but his Honour went on to say:

To disregard them -

that is to say, those cases -

for that reason would, however, be to ignore their substance and to fail to appreciate that their essential concern, like cases in this Court such as Barton v The Queen and McKinney v The Queen, was to identify what is necessary to ensure that an accused receives "a fair trial".

Having said that, one comes then to the decision in Strickland. In effect, what the court in Strickland did was apply a two-stage test. The first stage was whether counsel's conduct falls below that expected of reasonably - - -

GUMMOW J: The right to counsel is treated as an effective - - -

MR GAME: I am sorry?

GUMMOW J: Reference in the Sixth Amendment to "assistance of counsel" is construed as "effective assistance".

MR GAME: Yes.

GUMMOW J: That is what they are talking about there.

MR GAME: Whether it falls below that expected of reasonably competent counsel and, second, whether there is a reasonable probability if the outcome would have been different. There is a consideration of what "probability" means, and it is said that it does not mean "likely". If I could take the Court to a passage at 686, the second-last paragraph, and the last sentence says:

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Then there is the test stated at paragraph 3 on page 687. Then on 688 it says in the second-last paragraph:

In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.

Then at 694, the second-last paragraph:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Then on the previous page, it is said at the bottom of the page that it does not mean that it is "more likely than not that this would have altered the outcome in the case." On page 697 it says in the middle of the page:

The object of an ineffectiveness claim is not to grade counsel's performance.

Lastly, if I could just mention that English case of Boodram. In that case - - -

GUMMOW J: It is the Privy Council, is it not?

MR GAME: Privy Council, I am sorry.

GUMMOW J: Does that have any better report than the Times Law Reports?

MR GAME: Yes it - there is an unreported copy of it, which we have provided to the Court.

HAYNE J: It will be on bailii, will it not?

MR GAME: We have an Internet online. If your Honours go to page 7, paragraph 38 - I might say this is an extreme case. This was a retrial in a murder trial where counsel was not even aware that it was a retrial.

HAYNE J: I rather suspect we do not have it, Mr Game.

GUMMOW J: We do not have it.

HAYNE J: We have only got Times Law Reports, not the - - -

GUMMOW J: That is why I asked.

MR GAME: I am sorry, your Honour. Perhaps if I could have it copied and sent up this afternoon. If I could just read - in the Times Law Reports - - -

GUMMOW J: Were they construing some provision in the Trinidad and Tobago Constitution. That is what I am worried about. It does not appear from what is shown here.

MR GAME: I do not think so, your Honour. I will just say this. They asked themselves whether their Lordships could be satisfied that one can say with certainty that, "Mr Sawh's failure caused no material prejudiced to the defence." One sees that referred to in the Times Law Reports at the top of the second column on page 318.

GLEESON CJ: According to the Times Reports this:

was the worst case of the failure of counsel to carry out his duties . . . that their Lordships had come across.

MR GAME: Yes, it is pretty bad, your Honour.

HAYNE J: Counsel did not know he was doing a retrial.

MR GAME: Yes, and he did not have a transcript. What I was going to say is that, and I will have it copied and sent up this afternoon - I apologise it was not sent before - but in paragraph 39 they say there are cases where the conduct will be so extreme that you do not need to ask a question about whether or not the conduct would have had any impact on the outcome of the case and they thought that this was such a case. So there will be cases - - -

GLEESON CJ: This was a hanging matter - she was sentenced to death.

MR GAME: Yes, your Honour, but the point of principle is that there will be cases where you do not have to inquire further than to be satisfied about the level of incompetence. That is all I wanted to say in reply.

GLEESON CJ: We will reserve our decision in this matter.

AT 3.55 PM THE MATTER WAS ADJOURNED