The Queen v Soma B23/2002 [2002] HCATrans 571 (7 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B23 of 2002

B e t w e e n -

THE QUEEN

Appellant

and

SIPAI SOMA

Respondent

GLEESON CJ

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 NOVEMBER 2002, AT 2.26 PM

Copyright in the High Court of Australia

MS L.J. CLARE: If the Court pleases, I appear for the appellant. (instructed by the Director of Public Prosecutions (Queensland))

MR R.V. HANSON, QC: If the Court pleases, I appear with my learned friend, MR A.W. MOYNIHAN, for the respondent. (instructed by the Legal Aid Office (Queensland))

GLEESON CJ: Yes, Ms Clare?

MS CLARE: This is an appeal against a judgment of the Court of Appeal in Queensland concerning the introduction of evidence of an out-of-court statement by an accused after he had given evidence in a trial contradicting that earlier statement. The respondent was convicted of rape, and the issue at trial was essentially one of consent.

It was a case where the complainant and the respondent had not known each other until the night in question. The complainant's version involved circumstances of preliminary findings. She said that the respondent had attacked her outside of his home - or outside of the house where he was staying; that he had pinned her down on the ground, that he choked her, put something in her mouth and then dragged her into the house where he raped her.

The respondent himself told the court that there had been some skirmish outside of the house, that the complainant had stolen his wallet, that when she attempted to leave he took hold of her and thereby broke her necklace that she was wearing, but after that, he had gone back into his own house, she had followed him, and that she had undressed and essentially almost pounced upon him, then after that there had been consensual intercourse in the house.

The out-of-court statement was an interview with police which was tape recorded by police officers. In that interview - and the relevant portion which was played to the court, ultimately at the trial - concerned admissions of violence, of that preliminary violence by the respondent.

HAYNE J: Why was not that tendered as part of the prosecution case?

MS CLARE: The explanation for that does not appear in the trial record but the Court of - - -

HAYNE J: Is not that the root of the problem that now arises? Can you offer now any explanation for why, having called the interviewing officer, the record of interview with the accused was not tendered as part of the prosecution case?

MS CLARE: The Court of Appeal was told the reason for that was that the Crown Prosecutor had formed the view that there may have been an objection to the evidence on the basis that it was an interview done whilst the respondent was in custody on other matters and that there had been no caution administered to him.

KIRBY J: So instead of confronting that problem in the Crown case, the prosecutor decided to lay in wait on the inevitable circumstance that there was a version, if the accused gave evidence, that caused a problem, to tender it whilst the accused was being cross-examined.

MS CLARE: That is the way it transpired but, with respect, there is nothing to suggest that it was, in fact, the tactical approach of the Crown Prosecutor.

KIRBY J: He just happened to have it on his desk on the Bar table by accident.

MS CLARE: Well, the realities of a trial would be, your Honour, usually, that the depositions and all the material contained in that would be with the prosecutor. In this case - - -

McHUGH J: Well, he would be a foolish counsel if he made a deliberate decision not to do it, because if it was tendered in-chief it would be evidence of the facts. Tendered in reply it is no evidence of the fact; it is just merely evidence which undermines the evidence of the accused.

KIRBY J: I wonder if the jury would not make a big deal of that difference?

McHUGH J: They would be directed to that effect.

CALLINAN J: Is there not a section of the Evidence Act that makes it evidence of the truth?

MS CLARE: Yes, section 101(1) provides that if the evidence is admitted by virtue of section 18 then it becomes evidence of the facts.

McHUGH J: Yes, I see that.

HAYNE J: Well, again, how consistent with the prosecution's obligations was this evidence not tendered as part of the prosecution case?

MS CLARE: Well, in respect of an admission, if it is - - -

HAYNE J: Admission or self-serving, how can the prosecution go to the conclusion of its case without attempting to tender the record of interview with the investigating officer, even if it is wholly consistent with the accused's innocence? How can the Crown do that?

MS CLARE: Well, the self-serving interview normally offends the rule against hearsay and is not admissible at all unless it is admissible for some other reason such as to prove a lie, to show a consciousness of guilt, for example.

HAYNE J: But in this case it is said that the accused said things that were contrary to his interest, is that so?

MS CLARE: That is so. I cannot get around the fact that the interview, if admitted, contained corroboration of the complainant's account. It contained admissions of violence against this complainant very soon, immediately prior to, if you like, an act of intercourse which was said to be the rape. So it was in that situation corroborative.

HAYNE J: Why should he not go back for retrial where the Crown does its job, performs its duty and puts the case for the prosecution before the accused is called on to answer?

MS CLARE: But the appellant's argument is that notwithstanding the fact that the Crown chose not to lead the evidence in its case that there was no unfairness to the respondent, that this is not properly a case of rebuttal evidence. It is not a case where the rules ensure relating to the splitting of the Crown case properly apply and it was one which led to be determined, if there was an issue about it, on the principles of fairness.

KIRBY J: I do not know about that because there in the middle of his case, the accused's case and version is being undermined in the midst of it by objective evidence, not by the questions from a barrister, but from an objective and rather dramatic piece of evidence with the voice of the accused himself.

MS CLARE: Yes.

KIRBY J: Forensically, that is the very sort of thing that I take Sir Harry Gibbs to have said should not happen. But you have to present that sort of evidence before the accused is called on to answer. What is the reason for the principle that this Court has expressed in the series of cases that are referred to by the Court of Appeal?

MS CLARE: That the accused should know the case that he has to answer.

KIRBY J: Know before the jury. It is not just knowing subjectively, that it should be presented before the jury before he is called upon to answer.

MS CLARE: That is right because there is an impression of added prejudicial impact.

KIRBY J: It is all part of the fundamental accusatorial nature of the criminal trial.

MS CLARE: But, with respect, if an accused knows that the Crown has prior statements by him and the Crown Prosecutor has chosen not to lead them in the Crown Prosecutor's own case, then the decision as to whether or not that accused, for example, should call evidence or give evidence is still subject to the same sorts of forensic decisions that ordinarily confronted an accused about giving evidence so that an accused should know in those circumstances that - - -

KIRBY J: "Present its case completely" are the words of Chief Justice Gibbs. Present its case completely before the prisoner's answer is made.

CALLINAN J: Ms Clare, is there any reason why the prosecutor would not wish to adduce the evidence in the prosecution case? It seems to have been assumed and is probably right, that it was corroborative or at least capable of being corroborative.

MS CLARE: Yes, it had to be corroborative in the circumstances.

CALLINAN J: You accept that it was corroborative of rape?

MS CLARE: I accept that and it was, in fact, left to the jury as corroboration.

CALLINAN J: Is it necessarily corroborative of the rape?

MS CLARE: Corroboration only needs to be - - -

CALLINAN J: In a material particular. Did it extend beyond pushing the complainant to the ground and holding her on the ground?

MS CLARE: And wrapping something around her mouth.

CALLINAN J: Wrapping something around her mouth, and these events were said to have occurred outside the house where the rape occurred, is that right?

MS CLARE: Yes.

CALLINAN J: And how long before the rape?

MS CLARE: On both accounts really what happens outside is followed very shortly after by going into the house. On the girl's account she is dragged into the house and there she is raped. On the respondent's account there is I think some chitchat and he is fixing up a room for her while she strips for him.

CALLINAN J: It would not have been withheld upon the basis, even if it were an uninformed or not properly informed basis, that a prejudicial effect might, for example, outweigh its probative value. It was certainly probative.

MS CLARE: I could not argue that.

CALLINAN J: So, we have to assume or infer that it was either done deliberately and wrongly, or inadvertently, is that right?

MS CLARE: I think I have to accept I am caught with the fact that the Crown Prosecutor had turned his mind to leading the interview but decided against it in this case because the court was told that below.

GLEESON CJ: Can I get an aspect of the facts straight in my mind, Ms Clare. I may have misunderstood them but this interview was something of a curate's egg, was it not, from the point of view from both sides. As I understand it, the account that the accused gave in the record of interview was generally exculpatory but it included an account of some physical activity outside the house that was consistent with the finding of beads or matter from beads outside the house.

MS CLARE: Yes, that is right.

GLEESON CJ: On the other hand, the exculpatory account he gave the jury did not involve any physical violence outside the house.

MS CLARE: That is so.

GLEESON CJ: And it was the consistency of what he said in the record of interview about what happened outside the house with the finding of beads and with her evidence of a scuffle outside the house that favoured the Crown.

MS CLARE: Yes.

GLEESON CJ: But the record of interview did not contain any admission of rape.

MS CLARE: No, it did not ever go that far. In fact, it is unclear really on at least that portion of the tape which was played whether the respondent actually acknowledged that there had been an act of intercourse that took place. He did not do it directly. There is a reference to the girl attempting to seduce him but he goes from there really to her having a shower. He does not mention that there was in fact intercourse.

KIRBY J: But he says:

Q. Did you push her to the ground?

A. Yeah. That was down on the ground.

Q. Did you put anything around her mouth? A t-shirt?

A. . . . yeah. Yeah. Because he-

meaning she -

crying for tell everyone I rape -

That is very devastating from the point of view of the accused. It admits to the accusation of rape. It admits to the crime. It admits to putting a T-shirt round a person's face, which is not something you do is most amorous encounters, and it admits to pushing her on the ground.

MS CLARE: Yes. It seems to be an allegation that the complainant is making a false complaint of rape without an acknowledgment that there was a rape, that there had been a complaint of rape, that he was angry at her because she stole his wallet and because she was accusing him of rape. It is not clear from that portion whether that is a reference to something that occurred prior to the act of intercourse in the house or whether it is a reference to something that happened after. Certainly, if he was intending to suggest that these circumstances happened prior to him having intercourse with this woman, it would make his account extremely implausible, but - - -

KIRBY J: If it made his account extremely implausible, it ought to have been tendered in the prosecution case. The more implausible it made his account the more important it was that the evidence should be completely presented before the Crown's case was finished.

MS CLARE: I accept the force of what your Honour is saying. I do not mean to suggest that this was an admission to rape, this interview, for a number of reasons, the first of which he does not even directly acknowledge that there was, in fact, intercourse, but he suggests that any overtures or initiative came from the complainant. He also acknowledges that there was some violence to her, but it is not clear on his version when that might have been.

From the evidence that was given at the trial, and that includes his evidence, it would seem the time for this act of violence would have had to have been outside of the house prior to the intercourse so it is after his evidence. If one were to consider this in the light of his description of events at trial, then one could then use this description of the violence to say then it would be extraordinarily improbable that a man who had just been accused of rape by this mad woman and who had stolen his wallet and so forth would then allow her to have her way with him in the house.

KIRBY J: I take it that in Queensland you tender evidence in the case of another party? You do not wait till the end - you do not mark it for identification and tender it at the end of that party's case in reply?

MS CLARE: No, and that is what happened here. It was proven and tendered through the respondent.

KIRBY J: Yes, that is why some of the cases when they talk about after the closure of the case, really, I think, refer to procedure in the more traditional common law jurisdiction in New South Wales where it cannot be tendered in the case of the other side.

MS CLARE: Yes, so that certainly was the case in Chin, but in all of the authorities of this honourable Court that have been able to be identified by either side in this case, there were actual witnesses called by the Crown. It was not just a case of leading evidence through an accused. There were witnesses who were called after the close of the Crown case.

KIRBY J: What do witnesses do? They give oral testimony. What did this tape do? It gave oral testimony.

MS CLARE: But it followed upon and it occurred through the admissions of the accused. This appeal seeks to distinguish between that category of evidence, which is rebuttal evidence and for which the rule in Shaw applies, and that body of evidence that relates to previous contradictory statements of witnesses. The submission is that that is a separate and distinct category of evidence. In the situation of a prior inconsistent statement of the accused, it is not a subspecies of rebuttal evidence but has its own form and validity.

GLEESON CJ: Whether your argument is right or wrong it comes to the proposition that the situation covered by section 18 of the Evidence Act is not subject to the overriding Shaw principle, whereas, rightly or wrongly, the Court of Appeal of Queensland said that it was and decided the case on that basis. So that is the point.

MS CLARE: That is the point. The submission is that the admissibility of this type of evidence is governed by section 18 which is subject to - - -

GUMMOW J: Exhaustively.

MS CLARE: It is subject to principles of fairness by virtue of section 130.

GUMMOW J: Section 18 is a peculiar section. It is at least 150 years old, is it not?

MS CLARE: Well, in Queensland it is not - - -

GUMMOW J: It comes from English legislation in the 1860s, I think.

KIRBY J: You have not been splitting your case all this time. You have been conforming to the normal rule of the Prosecutors of the Crown, which is rules of great importance for the fairness of the accusatorial trial. Your theory of section 18 is one that would just right the accusatorial system and the presentation of all the evidence completely out of the criminal procedure lexicon. That cannot be right.

GUMMOW J: Section 18 applies in civil and criminal cases surely?

MS CLARE: Yes, it does but it draws no distinction, so on its face at least - - -

GUMMOW J: And it was said, I think, to reproduce the common law as understood in the 1860s.

MS CLARE: Except that it takes it further, and it may be that what I am arguing in effect is that the rule in relation to inconsistent statements, whether it be by common law or by statute, is apart from the rule in rebuttal evidence. But my case here today is about section 18 and the argument is that if the rule in relation to splitting the case was to apply, then it would allow no scope for section 18 to operate in respect of an accused.

When the court talks about "unfairness", that is a separate issue, but the general principles of Shaw's Case in relation to the requirement for exceptional circumstances, the need for the issue not to be foreseen in the Crown case and for the matter to be more than of marginal importance in the Crown case, the transposition of those features to a section 18 case just does not fit, in my submission, and it would mean not only would it be an exceptional case - notwithstanding section 18 permitting this evidence to be called in relation to an accused, not only would that common law principle make it an exceptional case for it to be able to be used in relation to an accused, it would be virtually impossible for it to be used.

There is an example in the judgment below taken from an earlier decision of the Queensland Court of Appeal of Burns. Justice Cullinane in the court below quotes from Burns. Justice Pincus in that case gives an example of how the rule in Shaw's Case would apply to permit the use of a prior inconsistent statement against an accused. The example that he gives relates to a situation where there is a denial of any involvement at all by the accused at first instance when interviewed, and that later on at the trial, where the accused then chooses to give evidence to admit some involvement, to explain it in an innocent way.

HAYNE J: Again, assume for debate that an accused in the record of interview denies involvement entirely. Why should the prosecution not, consistent with its obligation, adduce evidence of that fact?

MS CLARE: The prosecution cannot, unless it can prove it as a lie or make it relevant in some other way. If it is simply a self-serving statement - certainly the authorities in Queensland dating back to cases like - I do not have them with me - Kochnieff and Callaghan - I can give the Court the authorities for those in due course.

HAYNE J: I tell you this, Ms Clare. It comes to me as a complete surprise that the prosecution would not routinely put in the record of interview, even if it consisted of complete denials.

MS CLARE: No. That is certainly not done in Queensland and it is impermissible.

GLEESON CJ: What do those cases stand for that you just mentioned? You are going to give us a reference in due course, but what do you say they stand for?

MS CLARE: That completely self-serving statements by an accused are inadmissible in a trial and cannot be led by the Crown, that they offend the rule against hearsay. It is only where there is some incrimination in them at some level that they become relevant and admissible, or probative and admissible.

KIRBY J: Except as answering the point Justice Hayne has been raising with you, it does not really touch this evidence because this evidence was by no means self-serving. On one view it was devastating.

MS CLARE: That is so.

KIRBY J: But Justice Hayne's question is left hanging in the air, and that is, is it not the instruction of this Court in Apostilidis and other cases to the effect that it is the Crown's duty to put all reasonably relevant material before the jury in its case and not just the evidence that happens to favour the Crown, if it is pertinent to the matters upon which the jury must pass for its verdict.

MS CLARE: The approach of the Queensland authorities has been to the effect that the Crown cannot lead it, that nobody can lead it. It is inadmissible by either the Crown or the defence.

GLEESON CJ: We had better have those references in due course.

MS CLARE: And that if there is some incrimination, if it is not purely exculpatory but does contain some incrimination either directly or indirectly, then it is admissible at the election of the Crown, at the option of the Crown.

Now, the two cases that I had in mind was the case of Kochnieff (1987) 33 A Crim R 1. There is another authority of Callaghan [1993] QCA 419; [1994] 2 Qd R 300, which is more recent.

GLEESON CJ: Thank you.

MS CLARE: Although it is getting off the point a little, that example - certainly the way the present authorities are in Queensland, that inability to lead anything other than that which implicates in some way would mean it really restricts the Crown's position. The example that is given in Burns, for example, where an accused is driven into the box to explain away his involvement by the circumstances of the evidence that he is confronted with, after having earlier denied his involvement at all, would still not be a case where an inconsistent statement could be led on the state of current authorities here in Queensland because it would virtually amount to a lie on its face anyway and so the evidence would be admissible and the original denials available to be used by the Crown.

HAYNE J: It seems to be a view that proceeds from the assumption that if evidence is hearsay, it cannot be led, rather than the view that if evidence is hearsay it is open to objection by the opposite party, that is, it is a matter for the accused to object to its reception and until that objection is received, the evidence can be tendered. Most accused would be more than happy to have their denials put in. However.

MS CLARE: If I can go back to the issue of fairness and how that impacts on a case like this where an - - -

GUMMOW J: Wait a minute. How does it enter into the hard mechanics of admissibility or non-admissibility?

MS CLARE: What is that, sorry, your Honour?

GUMMOW J: You talk about fairness, but fairness directed to what legal criterion?

MS CLARE: All right.

GUMMOW J: The whole of the law of evidence seems to be coming just with a lot of discretionary sloppiness.

MS CLARE: Yes.

GUMMOW J: Partly encouraged by the new Act, I know, but we are not in the new Act here.

MS CLARE: No. Well, perhaps I can move back one step. Section 18 on its face would provide for the admission of this evidence. The court below found that the requirements of that section were satisfied but notwithstanding that, it applied the rule in Shaw to conclude that there were no exceptional circumstances here and, therefore, overturned the verdict. It did that, notwithstanding an acknowledgment of statements by this honourable Court in earlier cases - - -

GUMMOW J: I know, Ms Clare. Where does this proposition of fairness come in as a proposition of law formulated by you in your submissions? Are you are propounding some new principle?

MS CLARE: No. Well, I was hoping not.

KIRBY J: Is it section 130? Is it the sort of reserved - - -

MS CLARE: Section 130 preserves the general discretion of fairness so that is brought in. We say that section 18 which provides for admission, it is not an argument that suggests that section 18 would make admissible a confession which would otherwise be inadmissible and I mean by that where there is an involuntary confession, for example, it would be excluded on the basis that it would be unfair. If there had been - under the Queensland law admissions to police have to be taped, so if there was an admission to police that was sought to be led that was not taped, then it too would raise this question of fairness as to whether or not the evidence could be led.

GLEESON CJ: So that if a person had made a prior inconsistent statement at a time a policeman had his arm up behind his back, then section 18 would not justify reception of the evidence.

MS CLARE: In my submission, no, because it is - - -

GLEESON CJ: Because of section 130?

MS CLARE: Yes, because it is still subject to those general principles of fairness and the discretions that allows them to be excluded and the argument makes no attempt to make an inadmissible confession admissible by this section, but simply work with those confessions which are otherwise admissible.

KIRBY J: Has there been a case in Queensland where this sort of problem, which on the face of things looks like the Crown splitting their case to a foreigner from another State, has been dealt with by saying, "Well, you apply section 18 but you get relief from section 130" and then the judge has to do general fairness in a miasma of kindliness and fairness.

MS CLARE: The earlier authorities from Queensland would be against me in that they follow - I think the most obvious one to me is Neville which is mentioned in my learned friend's outline, but they apply the decision of this Court in Niven to say that section 18 is subject to the rebuttal rule and, therefore, it has to be exceptional before it can be used.

CALLINAN J: Ms Clare, the two Queensland cases that you rely upon, are they not cases in which the statements, the out-of-court statements, were purely self-serving statements? They were not, as here, statements that were both inculpatory and exculpatory.

MS CLARE: Yes, that is so. I do not rely on them as such but I have just mentioned - - -

GLEESON CJ: You only raised them in response to a comment that Justice Hayne made.

MS CLARE: Yes, about the admissibility of any statement by an accused.

CALLINAN J: Well, no, they have to be statements that are self-serving. Any admission against interest can be tendered.

MS CLARE: Yes, I accept that.

CALLINAN J: But is not what has otherwise been put to you that, unless the statement is purely self-serving, that is to say, for the benefit of the accused, then neither party can tender it. The Crown cannot tender it because it is not probative of anything in the Crown case - - -

MS CLARE: That is so.

CALLINAN J: - - - and the accused cannot tender it because it is self-serving.

MS CLARE: No, that is so. He has to get in the box if he wants to put that version.

GLEESON CJ: Ms Clare, you said to us that section 18 does not open up the possibility of an inadmissible record of interview being tendered.

MS CLARE: Yes, because there is still the safeguard of section 130.

GLEESON CJ: I understand that, but there are only two possibilities: either this record of interview was admissible or it was inadmissible.

MS CLARE: Yes.

GLEESON CJ: If it was inadmissible, you say that it cannot get in.

MS CLARE: Yes.

GLEESON CJ: If it was admissible, why should it not have got in earlier?

MS CLARE: My argument is premised on the basis that it was admissible, but it comes down to whether or not this is a case that should be caught by the rules in relation to rebuttal and splitting the Crown case. If my argument on that is wrong, then there is nowhere else to go and the appeal must fail.

GLEESON CJ: Because what happened here, on your account, is that the Crown had in its possession admissible evidence of a record of interview which it chose not to lead in-chief but was then able to use in cross-examination by reason of section 18.

MS CLARE: Yes.

KIRBY J: In the midst of the accused's case; confronting him whilst he was giving his version with some new evidence that was highly damaging to him.

MS CLARE: Yes, but it was evidence that he was aware of.

KIRBY J: Yes, but it is just incompatible, as I understand it, with the accusatorial nature of our criminal process.

MS CLARE: It really comes down to whether there is a key distinction between rebuttal evidence and this area of prior inconsistent statements and, our submission is that the key distinction is that in this case it is the witness' own words which are led to impeach him.

KIRBY J: But that might be a good argument, I can understand that, if suddenly in the accused's case evidence is given which comes as a bit of a surprise to the Crown and then they want to respond to that. But this was no surprise. You had it there and your predecessor in title simply elected, because he had a few doubts about having an argument with the judge as to whether it would get in, to leave it in reserve and then to use it in the midst of the accused's only chance to present his case before his jury to great potential devastating impact and that, I thought, was the whole reason why Sir Harry Gibbs said must present its case completely.

MS CLARE: Yes.

CALLINAN J: The argument against you really is you do not even get to the point of being entitled to rely on section 18 because there has been a failure to do something that could have been done before you even reached that point.

GLEESON CJ: Ms Clare, would you care to comment on the possibility that the word "rebuttal" is not an adjective, but an adverb, and refers not to the nature of evidence, but to the occasion on which it is adduced.

MS CLARE: I am sorry, your Honour, I just have to think that through.

GLEESON CJ: Your entire argument is premised on the proposition that section 18 occupies a different universe from the rule about evidence in rebuttal, which you call rebuttal evidence, and I am inviting you to comment on the proposition that the concept of evidence in rebuttal is not a concept about the nature of the evidence or the content of the evidence - - -

MS CLARE: But the timing - - -

GLEESON CJ: - - - but about the manner and circumstances in which it is led, because, if that is right, it would seem to me to undermine your argument that there is this distinction between section 18 evidence and rebuttal evidence.

McHUGH J: Can I ask, in your written submissions you do not place any reliance on this Court's decisions in Niven which I would have thought was almost in point and directly in your favour. Why is that?

MS CLARE: Niven is a case which concerns the re-calling of a witness as opposed to leading the proof of the inconsistent statement through the accused.

McHUGH J: But it was a case of an inconsistent statement being called in rebuttal.

MS CLARE: It was, and in overturning the verdict, or in upholding the - whatever it was, anyway, in upholding the accused's right to have the verdict quashed, the Court identified the principle as relating to evidence which was led after the defence case had closed. I think that is repeated several times on page 516 of the judgment. I was talking about section 371 of the Code which relates to - - -

McHUGH J: Now, do you have an equivalent of 371?

MS CLARE: No, Queensland does not have any. There is no statutory provision in relation to the evidence in rebuttal, rebuttal evidence. It is only the prior inconsistent statement which has been legislated upon.

GLEESON CJ: But you want us to overrule Neville, do you?

MS CLARE: I am sorry, were you talking about Niven or Neville?

GLEESON CJ: No, Niven.

McHUGH J: Niven.

MS CLARE: Yes.

GLEESON CJ: But you want us to overrule Neville, do you?

MS CLARE: Yes, there would be Neville and also - there are a number of authorities which my friend has referred to.

GLEESON CJ: Well, you had better name them if you do not mind because it is no light matter to go saying something which by a sideline knocks down a series of decisions. Could you identify the decisions that you want and need us to overrule?

KIRBY J: Then give us a good reason why we should.

MS CLARE: Ghion [1982] Qd R 781, Burns [1999] QCA 189; (1999) 107 A Crim R 330, Neville [1985] 2 Qd R 398. I think that is essentially it.

GLEESON CJ: Okay, well now they are all to the same effect as the decision in this case?

MS CLARE: Yes.

GLEESON CJ: That is what I wanted to know, thank you.

KIRBY J: Why, in principle, should this Court, if that is the settled state of authority in Queensland, withdraw and send a signal that to that extent the obligations that, on one view, lie on the Prosecutors of the Crown to present their entire case in the case in-chief of the Crown is going to be subject to a little bit of giving and taking and flexibility? I mean, why is it better for trial judges, for prosecutors and everyone involved to have a very clear simple rule?

MS CLARE: Yes.

KIRBY J: Must present its case completely before the prisoner's answer is made.

MS CLARE: Yes, I understand the force of what your Honour is saying. Those authorities really sought to apply Niven [1968] HCA 67; 118 CLR 513, a decision of this Court in 1968. Post-Niven there have been a softening of approach in cases like Chin and Lawrence in the judgments of this Court in regard to, in particular, cross-examination and the way in which the Crown is restricted or otherwise in the cross-examination of an accused and if one considers - - -

KIRBY J: That is one thing. I can understand that point, but cross-examination is at one level of the forensic art. Actual hard evidence in the midst of the accused's case is a couple of notches up the scale.

MS CLARE: But if you take this case, the Crown Prosecutor was confronted with a situation where he had to put his case to the accused - to the respondent, and when he did that, the respondent denied that there had been any previous violence and he denied that he had made any prior admissions about previous violence.

KIRBY J: He must have known he was going to do that.

MS CLARE: Well, not necessarily, because the approach of the defence counsel had been a very cautious one in this case. In my submission, when one reads the approach of the defence counsel, particularly in the cross-examination of the complainant and also in the way that he led the evidence-in-chief from his client, the respondent, it becomes very clear that the defence counsel did not consider that the matter was a closed issue in terms of leading the interview; that he was very much alive to the prospect that the Crown might still choose to lead the interview against his client, and I say that because - - -

GLEESON CJ: This was all done without objection, was it not?

MS CLARE: That is right. The attempt to prove the inconsistent statement, the playing of the tape and the subsequent tendering of it was done without any objection from defence counsel.

KIRBY J: Now, what is the relevance of that in this Court? That does not seem to have troubled the Court of Appeal. I assume that they took view, well, object or not, this was just a fundamental error in the conduct of the trial and therefore it was not to be waived except for some good reason and very consciously and that therefore they could overlook the fact that objection was not taken. Is it all sub silentio. It is not dealt with in the reasons.

MS CLARE: It is not dealt with, no.

CALLINAN J: Ms Clare, Ghion's Case does not really present any problems for you. You do not need it to be overruled. Did not the Court of Criminal Appeal there hold - and I would have thought, with respect, correctly - that the real error lay in the ruling by the trial judge that the statement was not confessional or was not an admission against interest, whereas it clearly was, and the Crown Prosecutor should have been allowed to adduce it, as the Crown Prosecutor sought to do, but the trial judge prevented the prosecutor from doing it.

MS CLARE: Well, Ghion is an example of how absurd the application of the principle can become, with respect.

CALLINAN J: No, not at all. Ghion is an example of a case in which there is a defective ruling by the trial judge - - -

KIRBY J: But the correct procedure was followed.

CALLINAN J: Yes, and if the ruling had been correct, there would not have been any problem at all. Nothing that we would say in this case would overrule Ghion. It seems to me to be perfectly orthodox and correct.

MS CLARE: It was a case where the Crown Prosecutor had sought to lead the interview and the defence had objected to the interview - - -

CALLINAN J: But the trial judge got it wrong. The trial judge should have allowed it in, as the Court of Criminal Appeal rightly held.

MS CLARE: But it is very difficult, in my submission, in those circumstances, to see how, when it was excluded at the request of the defence and after the defence had been warned that it could be used in rebuttal, to then hold that it was unfair to the accused to lead it in rebuttal.

CALLINAN J: The trial miscarried in Ghion. It miscarried because of the erroneous ruling by the trial judge. It is as simple as that.

KIRBY J: The correct procedure, wrong ruling, and correct determination by the Court of Criminal Appeal. Here, incorrect procedure, no ruling until in the defence case, query correct decision of the Court of Appeal.

MS CLARE: I have put in my outline the references from Chin and Lawrence that relate to the proper approach to cross-examination of an accused and how the strict rules splitting the case does not apply. In my submission here, once the Crown had reached the point where there were denials by the accused, it would have been unfair, in the sense of unfair to the prosecution, to preclude the Crown from playing the tape to prove in fact that the admissions were made.

KIRBY J: Not really because the Crown, if it should have called it in its own case before the accused was called upon to make his answer, then that was the time for you to do it and any unfairness was brought on your own head by your wrong decision.

HAYNE J: Some might say the accused made his denial when he pleaded not guilty, Ms Clare.

MS CLARE: Yes, but in this case - and I keep dwelling on this - the defence were aware of the respondent's admissions. When the Crown chose not to lead the statement in its own case - - -

HAYNE J: They though all their Christmases had come at once.

MS CLARE: The respondent got the benefit at that point of not having the evidence led in the Crown case but then it became a forensic decision for the defence to say whether or not - - -

HAYNE J: No, it became a prosecution bungle.

MS CLARE: In my submission, the submission here is that it cannot be unfair if an accused chooses to testify. There is not unfairness to him if he asked to explain any previously different versions that he has given, that the right to a fair trial does not mean that the accused has a right to give a variety of different versions without any challenge to those versions.

GLEESON CJ: Yes.

KIRBY J: Did you answer as fully as you could that my question why, if the Court here is as it were being pushed by you towards a further step in what call the softening, why is it not better as a matter of criminal law process principle to adhere to the simple rule stated by Sir Harry Gibbs? Why should there not just be a simple rule? The Crown calls evidence in its own case then everyone knows where they stand. Evidence is evidence and you call it in the Crown's case.

MS CLARE: Because there is also a fundamental rule, with respect, about the right to a fair trial for both the Crown and the accused and any witness, including an accused, should be brought to account for conflicting versions in their various accounts. That is something that is important for an assessment of the truth in the trial, that it is important for the integrity of the trial.

KIRBY J: Is not the case for us to consider that where something new happens? Say, in a drug prosecution that goes on for a long while, something new comes up, then the Crown surprised seeks to rebut that in a case in reply if it can get that.

MS CLARE: Yes.

KIRBY J: That is the time to consider that, not where you had the evidence and simply because you do not want to confront the argument as to its admissibility you do not tender it in your case.

McHUGH J: Is not your better answer that statements are made in cases like Chin, Lawrence and Shaw, have nothing to do with the case concerning an inconsistent statement where section 18 gives you a statutory right to put the evidence in in reply and the question is should that statutory right be read down by reason of the general principle that ordinarily the Crown ought to tender the whole of its evidence-in-chief?

MS CLARE: Yes.

HAYNE J: Is that not the best answer that you can make?

MS CLARE: Thank you, and with respect, I adopt it.

CALLINAN J: And in addition to what his Honour has just put to you, or rather because of what his Honour has just put to you, that is why you would like to get rid of Neville, in particular, because it imports into section 18 a whole lot of common law non-statutory provisions which you say section 18 does not require to be imported.

MS CLARE: No.

CALLINAN J: And indeed, if in Neville, the Court of Criminal Appeal had looked at section 130 and perhaps purported to apply it rather than to the common law principles relating to rebuttal evidence, then it might have been all right.

MS CLARE: That is right.

CALLINAN J: But Neville seems to be the most extreme example and I have just looked at it and obviously all of the considerations to which the court referred there were common law ones which had nothing to do with section 18. Is that not right?

MS CLARE: Yes.

KIRBY J: And that is a line of authority that has lasted at least since 1968 and indeed since Shaw in 1952 across the Commonwealth and for reasons that lie very deep in the criminal law and our criminal process and the fairness I might say of the way the Crown goes about prosecutions in this country.

CALLINAN J: I think it might also be a consequence of an imperfect understanding of section 18 of the Evidence Act.

MS CLARE: When one reads the decisions in those cases - putting aside Niven but reads those decisions in cases from this Court which discuss the principles in this area from the rule in Shaw, there is no mention in any of those authorities, apart from Niven, of this area of inconsistent statements having application to that principle. Examples that are repeatedly given of where it might arise are in relation to alibi evidence or evidence of good character, insanity. There is no acknowledgement that this is an area of the law which could have application to inconsistent statements.

GLEESON CJ: I think we got to that point some time ago.

MS CLARE: Sorry, your Honour, I am repeating myself.

GLEESON CJ: It is a question of the relationship between section 18 and those other principles.

MS CLARE: Yes.

GUMMOW J: Now, what do you say is wrong? In Mr Hanson's way of putting it, on page 2 of his outline in Part IV, as to how section 18 operates here.

MS CLARE: Yes, I accept that. But the question is what was the nature of that discretion? Whether it was the harsh restrictive rules of Shaw and the cases that followed or whether it was something more general, that relates simply to the issue of fairness. The sort of issues that arise in relation to fairness are discussed in cases like Lawrence and Chin, relate to the question of disclosure, whether the defence are taken by surprise or whether the evidence being led through the accused relates to material that had already been revealed in the depositions or by some prior notice by the Crown.

GUMMOW J: What do you say about Niven at 517? I know they are talking about section 371. 118 CLR at 517 about point 4, "It would therefore be advisable". Do you accept that or do you want us to overrule that?

MS CLARE: That raises a separate issue that is not directly raised by this case because there was no need to go beyond the evidence of the accused.

CALLINAN J: You have to say that is wrong, do you not?

MS CLARE: It is inconsistent with my argument, I accept that.

GUMMOW J: Well, the answer to my question should have been yes.

MS CLARE: Yes. But even if the answer is no, in my submission, it is not fatal to the argument.

CALLINAN J: Does the Queensland Evidence Act mention rebuttal evidence anywhere or evidence in rebuttal?

MS CLARE: No, nor does it mention that leave should be sought in relation to - if I can make that point - section 18 evidence. Now, there are other areas immediately following and after that section that do require leave to be sought, for example, under section 15 which relates to the admission of - for the criminal history of the accused leave must be sought, and that is specifically identified in the section, but there is nothing in section 18 itself which would say that.

KIRBY J: What was the video that was played in the case in-chief of the Crown? I notice at pages 17, 18 and so on of the transcript they say "VIDEO CONTINUED TO BE PLAYED".

MS CLARE: I think that was a video of the scene. I will just check that. Yes, this is a video of the search and what was found at the house. For example, the girl said that she was told to leave her name and her address and she had given a false name and address and there is a video of what the police found at the house, including those things.

CALLINAN J: You would say, would you not, that this is not rebuttal evidence because, but for section 101, it would be evidence which would go to the credit only of the accused and could not be evidence of the facts, whereas rebuttal evidence is evidence of the facts, is that not right?

MS CLARE: Yes, that would be true for most - - -

CALLINAN J: Rebuttal evidence would generally go directly to an issue, whereas evidence under section 18 is evidence "relative to the subject matter of the proceeding", which is a wider term, I would have thought, than evidence on or with respect to the issue.

MS CLARE: Yes.

CALLINAN J: So that section 18 does not deal with what might generally be understood to be rebuttal evidence. That would be one reason why you would say that the High Court decision either does not apply or, if it does apply, should be overruled because it does not have regard to the special nature of evidence under section 18 and its analogues.

MS CLARE: That is right, that it is a completely different category.

McHUGH J: Is not the whole case from your point of view about the rule that the Court of Appeal laid down? They said that section 18 evidence in a criminal case where it concerns the accused is only admissible in exceptional circumstances, whereas your case would seem to be that you have a statutory right subject to the question of fairness under section 130 to have that evidence admitted and there are many matters to be taken into account on the question of fairness, including the Shaw-type point, fairness to the Crown as well as unfairness to the accused.

MS CLARE: Yes.

McHUGH J: It may well be that, properly applied, you would come to the same result in this particular case but the court seems to have laid down a rule ignoring section 130 and laid down a specific rule.

MS CLARE: Yes, which would effectively exclude as a matter of practice, of practical reality, section 18's application to accused - - -

McHUGH J: Not necessarily. For instance, it would not in the case of a witness called for the defence. You have to remember that historically that is where this section operated originally in respect of criminal trials because, until the 1890s, the accused could not give evidence. So section 18 in its common law procedure analogues applied in a criminal trial to inconsistent statements and witnesses called by the accused.

KIRBY J: So that is what the Queensland judges have basically done. They have read this statute, which applies to civil and criminal trials, against the background of a very long history and virtually uniform procedure throughout this country. They have not just looked only at the words. They have looked at how the statute, which is for civil and criminal trials, operates in the very peculiar environment of a criminal trial.

MS CLARE: My submission is that in doing that they have deprived it of its statutory force.

CALLINAN J: And they have given no weight, or they have not construed properly the words "relative to the subject matter of the proceedings".

MS CLARE: Yes.

GLEESON CJ: Does that cover the arguments you want to make?

MS CLARE: Yes, thank you. Perhaps, there is just one other thing and I do not want to be repeating myself. I had earlier just mentioned in the context of what was fair in this case, attempted to point out that here the defence counsel was very careful in the way that he cross-examined the complainant and also led the evidence from his own client to not trespass into the area of admissions on that tape that were led.

So it did not appear as an issue in the way that he cross-examined the complainant and nor did it appear in an issue in the way he led evidence from his own client directly because there was never a challenge to the complainant's description of this extreme violence outside of the house. She was only ever questioned about whether or not it had happened on the footpath or inside the yard, but nothing as to the substance of the nature of what was alleged. Those are my submissions.

GLEESON CJ: Yes, Mr Hanson.

MR HANSON: Your Honours, I can firstly confirm Ms Clare's statement as to the Queensland practice with regard to self-serving statements. It sounds like it comes as a surprise to some of your Honours, particularly Justice Hayne. The practice in Queensland has been that purely self-serving statements may or may not be led at the option of the prosecutor and I think that is possibly based on what I recall was a Privy Council decision where it was argued that a self-serving denial was admissible at the behest of the accused and the Privy Council said, "No, it's hearsay evidence and even at the behest of the accused a self-serving denial is not admissible. If the Crown chooses to use it that is something different." That has been the Queensland practice.

On the question of unfairness: the unfairness in the case could be put this way. The accused had apparently decided to go into evidence probably believing that he did not have to face up to the statements in the record of interview. He went into evidence in the belief that the Crown had presented its case against him and among the matters he did not have to meet were the statements in the record of interview.

KIRBY J: That is slightly bootstraps because the question before us is whether or not that was a correct belief in law and if it is not, well he just made a mistake.

CALLINAN J: Mr Hanson, there was no application, was there, by the Crown to tender this statement?

MR HANSON: No, there was not.

CALLINAN J: The Crown never suggested as in, I think, Ghion that the evidence was admissible and should be tendered. Is not that so?

MR HANSON: Correct, your Honour. Quite the opposite factual situation from here.

CALLINAN J: And, in fact, that is common practice in Queensland. If there is any question about the admissibility of the evidence then the judge is asked to rule upon it before it is adduced.

MR HANSON: If the Crown wants to put it in that is what happens.

CALLINAN J: It happens frequently, does it not?

MR HANSON: Yes.

CALLINAN J: And sometimes parts of the record of interview have even been excised. Is not that right?

MR HANSON: That is a common practice in Queensland, that the jury get an edited version of the record of interview.

KIRBY J: And is there pre-trial determination of these matters as we have learned happens in some States?

MR HANSON: There is, your Honour. There is provision in the Criminal Code for pre-trial determination of questions of admissibility.

CALLINAN J: And it is because of that practice and the fact that no application was made here that you say your client assumed and was entitled to assume that the evidence would not be led against him?

MR HANSON: I expect so. Looking at it objectively he is entitled to make that assumption.

CALLINAN J: It is a reasonable inference.

GLEESON CJ: Mr Hanson, I have a procedural question I would like to ask you. The Court of Appeal decided this case, as I understand it, on the basis that the judge should, of his own motion, have taken some step.

MR HANSON: Yes, I think they had, your Honour.

GLEESON CJ: What step and when?

MR HANSON: I go back to Niven's Case. As they have said in Niven's Case, the prosecutor and the judge.

GLEESON CJ: No, no. I would like you to be a little more precise. A time came in the cross-examination of your client when the prosecutor started to ask him questions about his prior inconsistent statement. Is that the point at which the judge should have intervened?

MR HANSON: Yes, your Honour.

GLEESON CJ: There was no objection from counsel, but the judge should have said, "I'm not going to permit that line of cross-examination because you haven't tendered the prior inconsistent statement in your case in-chief".

MR HANSON: Or perhaps sent the jury out and discussed it with the cross-examiner, with counsel for the Crown, pointing out to him the difficulties that are now going to arise from hereon.

GLEESON CJ: That is what I wanted to understand.

MR HANSON: At that point.

GLEESON CJ: Thank you.

MR HANSON: And, in our submission, that is what the Court had in mind in Niven.

McHUGH J: But why should that be so? Why could not counsel for the Crown cross-examine? It might have got 100 per cent admission and got the accused to withdraw? It is a different issue when they come to tender it, but why could he not be cross-examined about it?

MR HANSON: Because, your Honour, it came about by way of an ambush. That has to be our argument, he was ambushed.

McHUGH J: Well most effective cross-examinations do.

HAYNE J: And all this happens at page 93, does it not; is this not where it is happening?

MR HANSON: Yes, your Honour, right at the outset of the cross-examination.

HAYNE J: Page 93, you get a distinct denial of - - -

MR HANSON: Page 92. The cross-examination commences at 92.

HAYNE J: Yes, and at 93, line 10, his attention is drawn to the conversation with Sergeant Inmon:

On that occasion you told him that she was crying, didn't you?

A. No.

And you also told him that you pushed her onto the ground, didn't you?

A. No.

Then:

can I have the tape -

So that is how it happened, is that right?

MR HANSON: Right at the outset, yes, your Honour. So we would - - -

GUMMOW J: Where is the tape tendered?

MR HANSON: Yes, the tape was played - - -

GUMMOW J: Where is it tendered?

MR HANSON: We believe so, we believe it is an exhibit in the case.

GLEESON CJ: There is no doubt about that, as I understand it.

MR HANSON: So that would be my response to your Honour Justice McHugh's question. The Crown would have arrived at that advantageous position by way of an ambush in breach of the rules.

KIRBY J: What is the significance that there was no objection to this course at the trial? Do trial objections not matter nowadays?

MR HANSON: They do, but this is such a basic fundamental rule that the rule must apply regardless of the way counsel conduct themselves.

KIRBY J: It does not seem to have troubled the Court of Appeal at all; they do not even deal with it.

MR HANSON: No, they do not, your Honour.

KIRBY J: Did the Crown raise any objection in the Court of Appeal to the fact that no objection had been taken at the trial, or not?

MR HANSON: Sorry, your Honour, I was not there.

McHUGH J: The tape is admitted at page 103, line 31.

GLEESON CJ: I think we have been told in the past that you do not have anything in Queensland the equivalent of rule 4 of the Criminal Appeal Rules in New South Wales.

KIRBY J: That requires leave to introduce new grounds that were not taken at trial.

MR HANSON: No, there is not.

GLEESON CJ: In all events, this was not, as it were, an issue in the Court of Appeal?

MR HANSON: No, the Court of Appeal just seemed to have seen it as a fundamental breach of a fundamental rule leading to an injustice and it is probably consistent with the Court of Criminal Appeal's decision in Ghion where, curiously, the judge, as your Honours have noticed, made the mistake; it was kept out at the behest of the defence and then went in, in cross-examination, even though the judge had made a mistake. Even though the defence had led to the judge's mistake, the accused ended up getting the benefit of it. So the rule is so fundamental, it seems that it does not matter greatly what - - -

GUMMOW J: What do you say about section 101?

MR HANSON: Section 101 gives the Crown that advantage, which it did not have before the enactment of 101 and, in this case, it was used to its advantage. As we have set out in our outline, the Crown then had the advantage of saying, "Here is evidence corroborating the complainant."

McHUGH J: But this Court has never regarded the rule in Shaw as so fundamental that its breach requires a new trial.

MR HANSON: No, it has not.

McHUGH J: Lawrence is the classic case.

MR HANSON: Yes, your Honour.

McHUGH J: If anybody's rights were ever interfered with, it was Lawrence, and it was in the middle of his cross-examination when the Crown was allowed to reopen its case to tender a witness who gave devastating evidence against him.

MR HANSON: I think your Honour and I had this debate at the special leave stage but what your Honour says is perfectly correct. This Court decided it should not have happened but Lawrence lost by applying the proviso.

KIRBY J: But there is a difference here. The Court of Appeal has granted the new trial and we would have to decide that that was an error in the exercise of their powers.

MR HANSON: Yes.

HAYNE J: Now, the case against you I understand to be or at least to include the proposition that sections 10 and 15 to 21 of the Evidence Act represent for present purposes a sufficiently comprehensive statement of the rules governing an accused giving evidence at a criminal trial as to amount to permission, perhaps even a right in the Crown to tender a statement under section 18. What do you say about that?

MR HANSON: Well, there is ample authority against it, your Honour, starting with Niven. Niven expressly says so. I think your Honours were given - - -

CALLINAN J: Does Niven analyse the actual language of the - it was a Tasmanian section, was it not?

MR HANSON: Yes, it does. It is a statute there in Tasmania.

CALLINAN J: Whereabouts is that?

MR HANSON: As Mr Justice Connolly said in Ghion's Case, there is no distinction really between the law under examination there and the law in Queensland. Where Tasmania in section 371 gives the judge a statutory discretion, that only reflects the common law said Mr Justice Connolly in Ghion's Case.

CALLINAN J: I know but, Mr Hanson, it seems to me that it is at least arguable that in Niven's Case the Court made no attempt to construe section 98.

MR HANSON: Well, your Honour, with respect, at the foot of 516 - could I just take your Honours back a page so that you see what happened in Niven's Case so that you know the facts. At the bottom of 514, the last paragraph on 514:

The accused was cross-examined without objection as to statements said to have been made by him to two constables who were guarding him in hospital after he had been charged with attempted murder, that is to say, before the death of his wife . . . He denied having made any such statements. The prosecution, after the conclusion of the Crown case -

it says, it must mean the defence case -

sought leave of the trial judge "to call evidence in rebuttal under s. 98 - - -

CALLINAN J: I know that. I am more concerned, Mr Hanson, with the words "relative to the subject matter", the words that I put to Ms Clare.

MR HANSON: Yes.

CALLINAN J: They do not seem to have been considered - - -

MR HANSON: In this case or in Niven's Case?

CALLINAN J: - - - in Niven's Case.

MR HANSON: Yes, your Honour, with respect, what - - -

CALLINAN J: Is there comment upon those particular words?

MR HANSON: The Court regarded those words as clearly inculpatory, which they were.

CALLINAN J: But where is the actual construction of section 98 of the Tasmanian Evidence Act?

MR HANSON: At the foot of - - -

CALLINAN J: There is no reference to the words "relative to the subject matter", is there?

MR HANSON: But when your Honour sees that the statements that he made were admissions of guilt - - -

CALLINAN J: I understand that, but that does not help to construe it. If there are admissions of guilt, they are plainly relative to the subject matter.

MR HANSON: As these were.

CALLINAN J: Yes, but there may be - and this is just in relation to the construction question - there may be matters that fall far short of being admissions of guilt but which it can be said are relative to the subject matter. It is because of that that it seems to me a distinction can be made between what is ordinarily understood to be rebuttal evidence and the sort of evidence which section 18 contemplates may be given. That is the point and I would just like you to deal with it for me, that is all.

MR HANSON: Yes, your Honour. Our argument is this, that the cases show that where the Crown seeks to lead evidence after it has closed its case, it may do so for one of several purposes. It may seek to lead evidence to answer the defence on an issue on which the defence bears the onus, or it may seek to contradict the accused or a defence witness on the matter of credit, which has to be under the statute relevant to the subject matter of the trial.

CALLINAN J: Yes, exactly. It expands the credit rule in one sense but it also causes it to contract in another because it has to be relative to the subject matter.

MR HANSON: This is the principle which we suggest is to be found in the cases. If that evidence that the Crown seeks to lead, concurrently with serving one of those purposes, is also affirmatively probative of the Crown case, then the principle in Shaw and Killick comes into play.

CALLINAN J: But I really do not understand, Mr Hanson, how, for example, Justice Pincus could in Burns discuss this question without reference to sections 101 and 130. Did his Honour refer to them in Burns, do you know?

MR HANSON: I cannot answer, your Honour - - -

CALLINAN J: Well, do not answer it at the moment. Perhaps your junior may - it is a statute and you cannot construe section 18 without looking at the other provisions of the Act, and it is just these statements which seem to have been made without giving sufficient attention, it seems to me, with respect to the particular wording of the section and the other sections of the Act.

MR HANSON: Well, that has been the longstanding view that - - -

CALLINAN J: It may turn out not to be a correct view, and I would like you to attempt to deal with it if you can on its merits and without simply saying, "Well, other judges have reached this conclusion in the past," because, as presently advised, it seems to me that they have reached that conclusion, with respect, without considering all the relevant matters, including in particular the actual language of the section.

MR HANSON: We would say this about section 18, your Honours, that it is merely another avenue for admitting evidence. That is all. It is not a Code which gives the Crown an absolute right - or anyone else in another case - to have it admitted.

CALLINAN J: Well, the right is only qualified or conditioned, is not it, by section 130? If you satisfy the requirement why should not you, subject to section 130, have a right to get the evidence in? The section says you can, and section 101 says what you can do with the evidence once you have got it in.

MR HANSON: Your Honour, because it may, for other reasons, have been inadmissible. As the Chief Justice said, the statement that the Crown wants to put in might have been extracted from him while the police had his arm up round the back and up behind his head. In those circumstances, it being an involuntary statement, it would not be admissible. It would not be a matter of discretion in the trial judge - not really discretion - as a matter at common law. An involuntary confession or statement is not admissible. So, in those circumstances, even though there was a prior statement that the Crown found very helpful, if it was extracted from him in a circumstance that made it inadmissible in law, then surely that must prevail over the wording of section 18.

McHUGH J: But that would be because of section 130, would not it? The fact that evidence is illegally obtained has never been at common law until recently - well, fairly recently anyway, until Bunning v Cross finally established it - a ground for rejecting it. I mean, evidence obtained by an illegal search warrant.

MR HANSON: Yes, but I would not accept that it was evidence illegally obtained, your Honour.

GLEESON CJ: That is just talking about an "involuntary admission"?

MR HANSON: That is what I am talking about, your Honour.

GLEESON CJ: That is what renders it inadmissible, its lack of voluntariness.

MR HANSON: Yes. It does not have to be extracted from him unlawfully by means of an assault. It may be an involuntary inadmissible confession because there has been a promise or a threat. So if it is at common law inadmissible, surely that must come into play and negate what appears to be a statutory right to lead the statement. That is what this Court - - -

GUMMOW J: I think what is put against you about section 130 is that when enacting the Evidence Act in 1977 section 130 was meant to catch up what in Shaw in 1952, it said to be this matter of practice procedure as understood at the time of Chief Justice Tindal in England, and that where the High Court spoke about "very special and exceptional", et cetera, that is watered down by 130. It is caught up by section 130 and then watered down.

MR HANSON: That may be so, your Honour, and of course - - -

GUMMOW J: That is what, in the end, is probably put against you.

MR HANSON: We face the other problem also that there seems to be a less stringent application of the Shaw principle if what happens happens in cross-examination.

GUMMOW J: Because this principle seems to be protective of the accused and so on, the accused's rights, you think it would have to be pretty clear if it is going to be picked up and watered down, and it is not, I suspect.

MR HANSON: No. Surely there cannot be an absolute right to lead evidence which is otherwise at law inadmissible. As Ms Clare pointed out to your Honours, there is a statutory requirement in Queensland that interviews be taped. In that event, if that is not complied with, there might be an argument that it is evidence illegally obtained.

McHUGH J: There is no common law right of the accused to give evidence. It is this Act, in section 15, which gives the accused the statutory right. Section 18 provides a condition that if you give evidence, you make an inconsistent statement, it can be tendered but it is all subject to section 130. Why should Queenslanders of all people want to call on the common law to be reading down statutory provisions in criminal trials, except in so far as the Act itself might do so?

The sort of matters taken into account in Niven's Case, that the basis for the evidence being called was a deliberate decision by the Crown to set you up is a powerful reason. The fact that it could have been tendered in evidence-in-chief is another factor. There are many factors to be weighed up and at the end of the day you might finish with the same result but at the moment the Court seems to have said it is only in exceptional circumstances. Where in the Act is there any reference to exceptional circumstances.

MR HANSON: I suppose that is what is meant by "unfair".

GLEESON CJ: Is it part of your argument that the opening words of section 130 provide simply that there is nothing else in the Act that derogates from the power?

MR HANSON: Thank you, your Honour.

GLEESON CJ: The former section 130 is simply a statement that there is nothing to be taken about that subject matter from the other provisions of the Act.

MR HANSON: Yes. It would be most unusual if this was intended to somehow modify the well-established rule in Shaw's Case. By these words that would be a most unusual approach surely. If anything, it is meant to simply preserve the general overall discretion the judge has to make sure that the trial is fair.

McHUGH J: What does "unfair" mean in this section?

MR HANSON: In that section, your Honour, anything that the judge thinks is unfair.

McHUGH J: Yes, that is what the law of evidence is coming to.

MR HANSON: That is what criminal trials are like and have been for a long, long time. If there is something unfair in the judge's view, that is it.

McHUGH J: Formerly it was because it was unfair because he would not get a fair trial, the juries would be diverted or might give excessive weight to the matter, but - - -

KIRBY J: One might say it is unfair that the accused should have to confront actual evidence, including his own voice, in the midst of his own case instead of having it presented so that he can make elections as to how he presents his case, whether he gives evidence or goes into testimony, calls different witnesses. That was what Chief Justice Gibbs laid down and it is a pretty fair rule. That is one view of fairness.

MR HANSON: It was unfair to make him go to his election, still at risk of having to face that record of interview.

CALLINAN J: Particularly when no application had been made earlier to adduce it in the Crown case.

MR HANSON: Well, he was entitled to think that the issue was dead, surely.

KIRBY J: I am just wondering if your case is not sort of manoeuvring itself a little bit to a notice of contention type point, that you say even if the Court of Appeal got the interpretation of section 118 and 130 wrong, that nonetheless in this particular case they reached the right conclusion because any proper application of section 130 would have resulted in your client's case inevitably in a conclusion that it was unfair and that he should not have been put to the risk of having the Crown's case effectively split and the evidence called in the midst of his own testimony.

CALLINAN J: And if I might add to what his Honour has just put to you, that was probably the view that it was possibly unfair, follows from paragraph 26 of the judgment. Justice Cullinane says that the Court of Appeal was told that:

the prosecutor did not lead the evidence in the prosecution case is because it was anticipated that objection might be taken to it because the interview took place whilst the appellant was in custody and without any warning having been administered to him.

So obviously the prosecutor was concerned that it might have been unfairly obtained. Whether that is right or not is another question.

MR HANSON: I am sorry, your Honour, obviously - - -

CALLINAN J: The prosecutor thought that it might have been - it was at least arguably unfairly obtained. Is that right?

MR HANSON: Obtained in circumstances where the judge in the exercise of his discretion by way of applying the judge's rules would rule it to be inadmissible, and that I suppose is an example of unfairness. We have raised that in our outline. We have pointed out that the advantage that the Crown obtained then by what happened. They then obtained corroboration of the girl's evidence. They discredited the respondent.

KIRBY J: I think we should call her the complainant. I know that the Director of Public Prosecutions called her "the girl" but I think we have gone beyond that.

MR HANSON: They have obtained corroboration of the complainant's evidence. They have discredited the respondent and they have obtained evidence which is positively probative of guilt by way of admissions of the use of force on the complainant. Admissions of the use of force coupled with self-serving denials but nonetheless, as has been pointed out in argument, they are powerful acknowledgements against his interest. The Crown obtained the advantage of that by what happened. That is where he found himself when he made his election, presumably thinking he was safe from having to face up to that risk. Your Honours, I am not sure that I can add a lot to what I have said already.

GLEESON CJ: Thank you, Mr Hanson.

MR HANSON: I am not sure that I have sufficiently emphasised the point we wanted to make, that if what is sought to be led by the Crown under section 18 is confirmatory, is proof positive of guilt, then Killick and Shaw come into play. The rules are still there. Even though they may be less stringently applied, as Chin says, we do not suggest that that be overruled or departed from. Even though the rule may be less stringently applied, it is still there, if the effect of what they want to use is proof positive of guilt. That is to be found in Killick and Chin. Sorry, your Honour, one more word. Killick and Chin are not section 18 cases; Niven is.

GLEESON CJ: Yes, Ms Clare.

MS CLARE: Just on the point of fairness of the interview itself, I need to make the point that the onus of proof of an unfair interview, of course, rests on the accused. In this case the only evidence that was led relevant to that were in the answers of the respondent - - -

HAYNE J: Sorry, you said the onus lay on the accused of demonstrating unfairness.

MS CLARE: That is right. The burden is on the accused.

HAYNE J: Can you explain to me why that is so?

MS CLARE: There are two parts for consideration of an interview. The first is voluntariness. If an admission is involuntary then it is not admissible at all.

HAYNE J: Yes.

MS CLARE: But once that point is passed and if it is a voluntary interview, then any issues in relation to fairness, the burden of proving those rests on the accused. That is clear from authorities like MacPherson.

GLEESON CJ: But this is all tested at a voir dire. If this evidence had been led in-chief, if the apprehension that was suggested existed on the part of the Crown Prosecutor had been well-founded, there would have been a voir dire examination and all these issues would have been ventilated.

MS CLARE: But, with respect, it is not the case that there must be a voir dire in respect of every condition.

GLEESON CJ: No, but that is what could well have happened if, in fact, there had been a question about whether this was admissible or inadmissible because of a failure to warn.

MS CLARE: That is so.

GLEESON CJ: The judge would have had to find out whether there was a failure to warn, for example.

MS CLARE: That is so.

GLEESON CJ: That issue was all bypassed by the procedure that was followed, was it not?

MS CLARE: Yes, but it was still open. It is not as though the Crown Prosecutor closed it off because it was still open for defence counsel to make an objection and he chose not to. He had to be alive to the same issues that the Crown Prosecutor was and he had the added advantage of having instructions from his client.

KIRBY J: Yes, but in the midst of his own case.

MS CLARE: Yes, but he still had the opportunity to make an objection to the use of the tape, to the tender of the tape, to ask for a mistrial. He chose to do none of that and it is not just that he was put on the spot because he also had the luncheon adjournment to consider that and it was after the luncheon adjournment that he came back and said that there would be no objection to even the tender of the tape.

CALLINAN J: Ms Clare, can I just ask you this: looking at the reasons for judgment of Justice Cullinane, his Honour does not really mention section 18 at all in relation to the first ground of appeal.

MS CLARE: No.

CALLINAN J: His Honour only mentions section 18 in the context of dealing with the respondent's submission that its requirements had not been satisfied. Was section 18 argued by your side in the Court of Appeal? Was reliance placed upon it?

MS CLARE: Yes, that was the support for what had happened. Section 18 was relied upon for what has happened.

CALLINAN J: Justice Cullinane does not mention it anywhere in his reasons for judgment dealing with the principal matter.

MS CLARE: That is one of the complaints that his Honour says there are no exceptional circumstances under the common law and therefore the trial miscarried but before he goes on to consider section 18 at all.

CALLINAN J: And then holds that the requirements of it were satisfied.

MS CLARE: Exactly, which is of no - - -

KIRBY J: This is an Australia-wide infection not to look at statute law but out of intoxication with the common law to stick with what the judges have said. They just do not like Parliament; they like judges. We understand that, but it is just not good legal theory.

MS CLARE: No.

KIRBY J: But what do you say about the point I put at the end, that you may get to the same result, even if you apply the statute, by reaching the view that section 130 applied in this case, given that you had the tape and that you, as it were, for reasons of convenience to the prosecution did not choose to tender it in the prosecution case, that that leads to the kind of unfairness that warrants the order that was made by the Court of Appeal?

MS CLARE: My primary concern is to clarify the law, but I make no concession in relation to this case.

KIRBY J: Yes. I have never known you to make a concession, Ms Clare, never, never, never.

MS CLARE: Sorry about that.

CALLINAN J: Ms Clare, did you appear in the Court of Appeal.

MS CLARE: No, I did not.

CALLINAN J: But what appears in paragraph [26] at page 144, was on your instructions, no doubt - - -

MS CLARE: Paragraph [26], yes. No, it was not on my instructions.

CALLINAN J: Well, it must have been on - - -

MS CLARE: I do not cavil with the correctness of what was said, that the court was told that the prosecutor did not lead the evidence, because it was anticipated that objection might be taken to it, because the interview had taken place while he was in custody without any caution.

KIRBY J: That is a completely intolerable excuse. It is just saying that, "Because we might have a bit of difficulty in, we will just take our punt and see whether we can get it in later"; have it on the Bar table, keep it at the ready - - -

MS CLARE: But, with respect, there is no suggestion here that the Crown Prosecutor had planned this all along or even that he could have known - - -

KIRBY J: He had it very handy and it went for the jugular within one page at the beginning of the evidence of the accused.

MS CLARE: And if one looks at the context of that, it follows the last bit of questioning by defence counsel. As I said, defence counsel was very careful not to tread on these issues of the admissions with anybody; he did not challenge the fact that this girl had been pushed on the ground and something had been thrust in her mouth by the accused with the complainant. He did not ask the accused, his client, to comment on those issues or ask him whether it had happened, but what he did ask him, at the end of his examination- in-chief, was whether this girl had screamed, and that was relevant because a neighbour had heard a scream and the Crown was relying on that for corroboration. So when he asked that question, and the denial came from the accused, the Crown Prosecutor then led into his questions and it was incumbent on the Crown Prosecutor to put the Crown case. An important part of the Crown case - - -

KIRBY J: In the correct place.

MS CLARE: But part of the Crown case was the violence that took place immediately prior to the rape. That is what he put to the accused and he denied, and that is why the issue of the tape arose. There was no ambush of this accused. He and his counsel were well aware of the tape, and that is amply demonstrated by the fact that defence counsel did not want to trespass on that, because he did not want to encourage the Crown Prosecutor to tender it. And then, when it was tendered, notwithstanding the fact that he was alive to all of those things, he made no objection to it. He did not object to it because it was unfair. He did not suggest that it was involuntary - and, indeed, it would be very difficult to do that, given then that his client admitted that he had taken legal advice before he had betaken of the interview.

The only evidence that could relate to unfairness in the actual taking of the interview came from the respondent himself, when he spoke about his difficulties with language and so on, in the cross-examination of the prosecutor. But that was answered, really, by the way that the respondent gave his own evidence - it seems that he gave most of his evidence without an interpreter, although one was present - and also by the way he answered on the tape itself. It was a narration, not an interrogation, and he even demonstrated what he had done. So once the tape was in, there is no doubt that there was in fact by him a deliberate admission of violence.

CALLINAN J: Ms Clare, I do not know whether Justice Callinane fully understood or applied, for example, what Justice Pincus had said in Burns. If you look at page 144, you will see that Justice Pincus had made the distinction, which I think section 18 itself makes - although his Honour does not refer to the section - but he gives an example of evidence which would become admissible, but which does not go directly to the issue.

MS CLARE: Yes.

CALLINAN J: Which is a distinction that is not drawn by Justice Callinane.

MS CLARE: No.

CALLINAN J: On any view, none of the cases that you say ought to be overruled or, at least, distinguished descend to trying to construe the language of section 18 itself.

MS CLARE: No, that is so.

CALLINAN J: Not even in Niven - it does not construe section 98 of the Tasmanian Act.

MS CLARE: No, and a number of those authorities from Queensland say simply that the issue of the application or the scope of section 18 in relation to a case like this is left open.

CALLINAN J: How could you decide Burns, I would have thought, without at least referring to sections 18, 101 and 130? Those provisions had been in force for a long time, but probably counsel did not refer to them?

MS CLARE: Burns was perhaps a different case, again, because the tape itself was of very peripheral value. Justice Pincus says it was not particularly - - -

CALLINAN J: These are discussions of matters of general principle, and they have been done in the vacuum of a statutory reference.

KIRBY J: And in the hallowed halls of the common law where lawyers feel comfortable.

MS CLARE: I am not sure if I misheard a question that was asked of my learned friend in relation to whether or not there had been any objection -whether the Crown Prosecutor in the Court of Appeal below had taken a point that no objection was made by defence counsel at the trial?

GLEESON CJ: That was a question.

MS CLARE: All right. I think I misled him because I misunderstood at that time what was being said, but in fact it was a point that was argued by the Crown Prosecutor. I have a copy of the transcript - - -

GLEESON CJ: No, we do not need the transcript - - -

MS CLARE: I am sorry, but it was a point that was made by the Crown Prosecutor, page 22.

GLEESON CJ: No, you just tell us that. We will take your word for it.

MS CLARE: All right. It was at some length. Those are my submissions.

GLEESON CJ: Thank you, Ms Clare. We will reserve our decision in this matter.

AT 4.08 PM THE MATTER WAS ADJOURNED