Ellis v The Queen [2004] HCATrans 488 (1 December 2004)

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Ellis v The Queen [2004] HCATrans 488 (1 December 2004)

Last Updated: 8 December 2004

[2004] HCATrans 488

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S323 of 2004

B e t w e e n -

DARREN DOUGLAS ELLIS

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 DECEMBER 2004, AT 10.20 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC: May it please the Court, I appear for the appellant with my learned friend, MR H.K. DHANJI. (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH, SC: If the Court pleases, I appear for the respondent with my learned friend, MR G.I.O. ROWLING. (instructed by Solicitor of Public Prosecutions (NSW))

GLEESON CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, the issue before the Court today is whether a court in applying section 101(2) of the Evidence Act 1995 (NSW)
which has the same provision, I should add, in the Commonwealth Act and also in the Evidence Act (Tas) – whether a court performing that task, applying that balancing test in 101(2) in relation to what is called “tendency evidence” or “coincidence evidence”, how it is to take into account common law authority on what is conventionally called propensity and similar fact evidence.

GLEESON CJ: Mr Odgers, in the notice of appeal on page 964, in each of the two grounds, there is a reference to whether the trial judge properly applied a certain test.

MR ODGERS: Yes.

GLEESON CJ: Properly applied a certain test in doing what?

MR ODGERS: In determining the admissibility of the tendency and coincidence evidence which was adduced by the prosecution.

GLEESON CJ: Thank you.

HAYNE J: And where do we find the ruling?

MR ODGERS: Your Honours, appeal book 2, page 399.

HAYNE J: This was a judgment - - -

MR ODGERS: Your Honour, I do not want to deflect from the question that that is the judgment. I was going to do a little preliminary introduction.

HAYNE J: No, but I want to know where the ruling is.

MR ODGERS: Your Honour, the ruling is at page 399.

HAYNE J: And what was the application that was the subject of the ruling?

MR ODGERS: It was an application that his Honour ruled that evidence relating to one count of break and enter not be admissible, or not be admitted, in the trial, or trials, of the other counts of break and enter.

McHUGH J: But there was only one indictment.

MR ODGERS: Quite.

McHUGH J: It had originally 13 counts and then it was reduced to 11, was it not?

MR ODGERS: Yes. It was foreshadowed by counsel for the appellant that if his Honour ruled that the evidence was not cross-admissible from one count to another, that there would be an application to separate the trials and, indeed, that application was essentially made and his Honour did separate the trials of two of the 13 counts which he ruled were not cross-admissible.

HAYNE J: Well, how, on a trial of an 11-count indictment was evidence of the commission of each of the offences charged not admissible, and at root that is the point which, it seems to me, you seek to make.

MR ODGERS: Your Honour, the question which the judge had to determine at this stage when he made this judgment was whether or not the evidence was to be regarded as cross-admissible. If it was not, it was well-established under the authorities of this Court in Sutton and other cases that it would be appropriate, absent unusual circumstances, to separate the trials of those counts.

McHUGH J: That is the problem, is not it, that the notice of appeal does not raise the questions that you seek to raise or that, really, it does not raise what seem to be the real issues, namely, as to whether the trial of these counts should have been severed or whether the judge’s directions were erroneous. Clearly, all this evidence was admissible.

MR ODGERS: In a trial of multiple counts?

McHUGH J: Yes.

MR ODGERS: It may be that, your Honours, I have misconceived the precise nature of the order that we are seeking or the challenge that we are making, but I have tried to make it clear in what I have just said that there was a preliminary issue to the question of separation of the counts which was whether or not the evidence was cross-admissible.

McHUGH J: I understand that, Mr Odgers, but it just shows part of the problem about these preliminary questions. I would have thought that the way it should have been raised was in an application to sever the indictment and that was what the judge should have ruled on. Instead, there seems to have been this abstract - - -

MR ODGERS: It was done in a fairly informal way and I have to accept that.

McHUGH J: Yes, you are stuck with it.

MR ODGERS: But, with respect, your Honour, it was appreciated that the two questions were wholly interrelated and there is a practical matter that the question of whether the counts should be severed turned on whether the evidence of one count was admissible in respect of the charge of the other counts.

HAYNE J: The decision to sever, if the evidence was not, as you put it, cross-admissible, would be a discretionary decision.

MR ODGERS: Yes.

HAYNE J: It would not be an inevitable consequence of concluding that evidence on count 1 was not admissible in respect of count 2 that the two counts be tried separately.

MR ODGERS: No.

HAYNE J: Thus the questions engaged turn immediately upon the question of discretion to sever or not, which in turn raise questions about what directions might be given, which in turn, where the presentment is not severed, may have engaged some question about whether sufficient directions were given at the trial of all counts. But the only question tendered to the Court of Appeal and the only question tendered here is one of admissibility, where radically different questions arise.

MR ODGERS: I do not know if this is an answer to what has been put to me, but it was an essential precondition to an argument that there should be a severing that there be a ruling that the evidence was not cross-admissible, and that when the ruling was made that it was cross-admissible in respect of 11 of the 13 counts, essentially the appellant lost the opportunity to then proceed with an argument that his Honour should exercise his discretion to separate the trials in accordance with the well established authority which establishes that usually a trial should be separated in such circumstances.

McHUGH J: But that is the point, is it not? That even if it was admissible, the judge still had a discretion, did he not?

MR ODGERS: I have conceded that.

McHUGH J: Yes.

GLEESON CJ: If you look at page 924, you see the sole ground of appeal that was before the Court of Criminal Appeal.

MR ODGERS: Was that 920?

GLEESON CJ: Page 924, volume 5. Now, as a ground of appeal relating to the wrongful admission of evidence, that is in an appropriate form; the only difficulty with it was that it was absolutely bound to fail because the evidence in question was so obviously admissible. As a ground of appeal in relation to a decision not to order separate trials, that is purely theoretical. It does not even refer to the decision not to order separate trials. It simply raises a hypothetical point of law.

MR ODGERS: I understand that, your Honour. I have explained as well as I can how it was that this matter was approached in the way it was. It was perceived by the representatives of the appellant that it was an essential precondition to challenging the way that the trial had proceeded to persuade an appeal court that there had been an error in the ruling that the evidence was cross-admissible. I now appreciate, which I had not appreciated before, that that was not the end of the section, that there were follow-on questions which would then have to be answered, which was, “Well, assuming it was not cross-admissible, should the trials have been separated?”, which raises the challenge to a determination that they should not be separated. But I can only say that that was the reasoning that was adopted by the representatives of the appellant - - -

KIRBY J: Can I ask, does this arise out of some understanding between the appellant and the Crown, because I do not see any hint in the Crown’s submissions? They join issue with you on the matters you wish to raise in the appeal.

MR ODGERS: Your Honour, the point that is being put to me now has never been raised by anybody until now.

KIRBY J: Not by the Crown earlier?

MR ODGERS: No.

KIRBY J: Not by the Crown in the Court of Criminal Appeal?

MR ODGERS: No.

KIRBY J: Not by the Court of Criminal Appeal?

MR ODGERS: No.

KIRBY J: Not by the Crown’s submissions in this Court?

MR ODGERS: Never.

GLEESON CJ: It is difficult to see from the reasoning of the Court of Criminal Appeal what the Court of Criminal Appeal was actually deciding as distinct from what point of law it was accepting or rejecting. Where do we see that part of the reasoning of the Court of Criminal Appeal where it identifies and upholds a decision of the trial judge?

MR ODGERS: Your Honour, I am struggling, as your Honour appreciates, because there is no doubt that the Chief Justice did not come at the end of his reasons to a precise formulation of the order that he was making of other than the appeal have it should be dismissed, nor did he precisely indicate the basis upon which the appeal should be dismissed. I can only say at this stage - - -

GUMMOW J: Page 931 indicates the starting point, but it does not seem to reach a destination.

MR ODGERS: I am sorry, your Honour?

GUMMOW J: Page 931 indicates the starting point, paragraph 2, but then that does not seem to be linked to any ultimate destination that is reached in the judgment.

MR ODGERS: Can I say this, without taking your Honours to the precise passages, that my understanding of what happened in the Court of Criminal Appeal was that the argument was advanced that the trial judge had erred in law in his approach to the question of cross-admissibility that I have used that term. That was the matter that was contested in the Court of Criminal Appeal. The Chief Justice and the other members of the court concluded that there was no error in his approach to the determination of cross-admissibility - - -

GUMMOW J: What do you mean by cross-admissibility, by the way?

MR ODGERS: The admissibility of evidence relating to one count, that is, evidence that certain things happened, that a property was broken and entered, that certain things happened in relation to that property, that there was evidence relating to renting of cars at the same time as the commission of that offence, evidence relating directly to that particular offence, whether that was admissible in respect of a separate charged offence, on a separate date and a separate place.

KIRBY J: No doubt that explains why the Chief Justice below did not go on to consider what the consequences would be if he had reached a different view. Had he reached the view that there was a problem under the Evidence Act then the question would be to clarify what should be done in those circumstances, but he did not reach that point and that rather explains to me why you and the Crown have not hitherto raised the point that the Court has now raised with you this morning. You have been treating this as a severed question, and you have sought to have a ruling on the severed question, but the procedural problem really lies with or before that severed question.

MR ODGERS: Yes.

HAYNE J: Now, the severed question is stated at a high level of abstraction, and stated at such a level of abstraction that it reveals, I suspect, that the question is not procedural but real and radical. Let me amplify it so that you understand the point I seek to have you consider. You speak of the evidence being cross-admissible without further articulating what evidence of what witness is to be admitted or rejected. Let me simplify the case to a two count case in which the same method of breaking and entering is used, but where, in respect of count 2, there is other circumstantial evidence; for example, hiring cars, cars which are observed in the vicinity, being driven by persons not dissimilar to the accused.

Now, the question of admissibility is more refined than whether evidence on count 2 is admissible in proof of count 1. The question of admissibility is whether evidence of witness X saying evidence content A, B, C is to be received or not received. To frame the question as you have, as cross-admissibility of evidence relating to counts, reveals, I suggest to you, that the question truly is one of severance, of presentment, that is to say, whether it is just or unjust that the trial of separate counts should occur simultaneously. It was that which the trial judge considered at 399 to 400, and to frame the question at the abstract level of admissibility of evidence obscures, rather than illuminates, the basic problem that emerges.

Now, that is the area for debate. I have made the point. I leave it to you to deal with.

MR ODGERS: My submission is that similar, perhaps not identical, issues arise whether one characterises it as a question of admissibility or a question of severance. While I accept that on the question of severance there is a discretion in the court whether or not it should sever, it will be very relevant to that question to determine whether or not the evidence of witness A, who gives evidence of property being broken into on a particular day and a particular place, whether or not a jury is entitled to take into account that evidence in respect of another offence committed in a different place and a different time.

KIRBY J: That has to be your submission, does it not, that there are two doorways and you are entitled to have the advantage of each of them? There is the first doorway about severance, and that presents for an accused all sorts of problems because of the discretionary character of that decision, and therefore you have elected not to challenge that, but you challenge the second doorway, severance not having been ordered in all counts. You are entitled to say, once you are in the trial process, the law of evidence applies, and you have to apply the Evidence Act and if it is not admissible in the trial, well, that may have been a reason to have severed but you are now in the trial and you are entitled to take your points on the Evidence Act.

GLEESON CJ: But that is a point you are bound to lose on, is it not, because once 11 counts were being tried together it was absolutely inevitable that all this evidence would be admissible. If you get past a complaint about severance, you must be into a complaint about the judge’s directions to the jury.

MR ODGERS: I think that is inevitable, so I do not adopt what your Honour Justice Kirby has put to me.

KIRBY J: I am just wondering why all these clever people who have looked at this matter before this minute have taken this view and I am just trying to explain it to myself. I do not see a difficulty with two doors and you having two bites of the cherry. The accused has that many times.

McHUGH J: I think the difficulty, Mr Odgers, is that when we sit down to write a judgment, supposing we uphold your submission - - -

MR ODGERS: Yes.

McHUGH J: What do we say?

MR ODGERS: Yes. I am trying to see through the answer now and one thing that comes to mind, your Honour, I am not sure this is - I may be shot down in flames, that is the danger of doing things on your feet and not anticipating a problem - is that if we persuade your Honours that the trial judge erred when he considered the question of whether or not evidence of witness 1 could be used in relation to count 1, could be used to prove commission of count 2, then the question arises: if he had not made the error, what would have happened, or rather, did the appellant lose a chance of the trial judge, if he had applied the correct test, ruling that, hypothetically, witness 1 could not be used to prove count 2, and then, did the appellant lose a chance of the trial judge then in the exercise of his discretion severing the two counts, so that the problem, I think, that the appellant faces is that since that issue was not determined by the Court of Criminal Appeal, all that the appellant could hope for from this Court would be to have the matter remitted to the Court of Criminal Appeal to determine what would flow from what I have just put to your Honours.

GLEESON CJ: Yes. The problem arises clearly from the terms of the statute. If you look at sections 97 and 98 of the Evidence Act, they do not just talk about the evidence being admissible.

MR ODGERS: No.

GLEESON CJ: They talk about the evidence being admissible to prove something.

MR ODGERS: Can I interrupt, your Honour? That is no different from the hearsay rule.

GLEESON CJ: Yes. Now, if 11 counts were proceeding together, I should have thought it would be absolutely obvious that evidence of what happened on the 11 occasions was admissible. The question is not whether the evidence was admissible. The question, to use the language of the statute, is what was the evidence admissible to prove?

MR ODGERS: Yes.

GLEESON CJ: Presumably, in his directions to the jury - and I have not read them, I must admit - the trial judge gave the jury some information to the effect that they could use the evidence in relation to count 1 to assist them to come to a conclusion in relation to count 2.

MR ODGERS: He did.

GLEESON CJ: So it is a complaint about the judge’s directions to the jury. The other matter that needs to be borne in mind is that the question is not just whether the judge erred in applying the wrong test. The question is whether, if he had applied the right test, he would have come to a different decision.

MR ODGERS: I understand that, although we say that the question should be, if it is really an application of the proviso that is operative, whether or not he inevitably would have, nonetheless, admitted the evidence.

McHUGH J: But it is not really that, is it, Mr Odgers? It is that the procedure is flawed from the beginning. It is not like the procedure adopted in De Jesus or in Sutton or Verma, where the applications focused on severance from the start and these questions, the questions you raise, are relevant in making that decision. It has turned it upside – the way they did it - - -

MR ODGERS: Your Honour, I can explain perhaps how it transpired as it did, whether that is going to assist this Court in working out where it proceeds next. At the beginning of the trial, I think the first day of the trial, it was brought to his Honour’s attention that the defence intended to make an application to separate the trials, but it was understood by both the Crown and - - -

GUMMOW J: Was this on 8 October?

MR ODGERS: Your Honour, I am flying blind.

McHUGH J: Yes, page 6, I think it is.

MR ODGERS: Yes, page 6, on 8 October.

HEYDON J: The defence application is foreshadowed on page 7, line 36. Mr Smith appeared for the accused.

MR ODGERS: Yes:

depending on the results of the legal argument –

which was an argument going to the question of what I have called cross-admissibility, although I understand what your Honour the Chief Justice has put to me, that that is not an entirely an accurate description of it –

there would be an application for separate trials in relation to separate matters if my friend’s not successful in establishing that he has got a tendency or coincidence evidence and so the indictment on the thirteen counts is really based on my friend’s assertion that he can establish that your Honour will allow into evidence either the evidence of all of the matters in the brief in either tendency or –

Then his Honour interrupted. He had to be arraigned, he was arraigned. Then at page 11, line 10, the Crown Prosecutor indicated:

the application the Crown is making is that your Honour will be pleased to make order that evidence of tendency and/or coincidence of the conduct of this accused be admitted into evidence.

That was conveying the idea that in accordance with sections 97 and 98, the evidence could be used for the purpose indicated in those provisions. Then exhibits were tendered in respect of that question and then there was a voir dire held to determine that. During the voir dire, although I cannot put my hand on where it was made clear, defence counsel again raised the proposition that - - -

GUMMOW J: One trouble for you with section 97 is that it is not drawn - - -

MR ODGERS: Sorry, your Honour?

GUMMOW J: Section 97 is drawn on the understanding that the similar facts are out there. They are not themselves the subject of a count which is joined.

MR ODGERS: Yes.

KIRBY J: I am beginning to understand that the course of the procedure adopted was that you – a course was taken at the trial that there was first the application was there for severance and then there was the decision to take this procedure whereby there would be a ruling under the Evidence Act and if that ruling went against the Crown then there would be the renewal of the application for severance?

MR ODGERS: In essence they were heard together, and his Honour understood that they were being heard together because in his ruling - - -

KIRBY J: The ruling would be very relevant to the severance issue.

MR ODGERS: Well, he did proceed to sever two of the counts on the basis that he had ruled that they did not satisfy the requirements of 97 and 98 and it was understood that he was being asked to sever those counts where he had made a ruling that the evidence did not satisfy the requirements of 97, 98 and 101.

GLEESON CJ: Just to take further the point that Justice Gummow made, if you wanted some real propensity evidence about your client you would have a look at the remarks on sentence. He served 11 terms of imprisonment for breaking, entering and stealing.

MR ODGERS: Yes.

KIRBY J: We have not got to the point of admitting that yet.

MR ODGERS: No.

KIRBY J: I see Mr Blunkett wants to do it in England.

GLEESON CJ: Nobody could criticise the judge for applying the test in the Evidence Act, could they?

MR ODGERS: Your Honour, no, but that is the issue we want to come here today to argue about, what that means to apply the test in the Evidence Act. That is what I had come here to argue. The question is rather how you apply it.

GLEESON CJ: Well, we seem to have got to the point where it is common ground that the evidence was admissible.

MR ODGERS: Once the ruling had been made that the trials were not to be severed.

GLEESON CJ: Well, it was admissible in the trials as they proceeded.

MR ODGERS: As they proceeded.

GLEESON CJ: Yes.

KIRBY J: But you had foreshadowed that you were intending if the rulings were in your favour, to insist upon the separate trials because then you would have the advantage of the ruling under the Evidence Act as relevant to the exercise of that discretion. So it is really a House v The King point that you did not get an ingredient in the proper and lawful exercise of the discretion for severance because of an incorrect ruling under the Evidence Act about the admissibility of the evidence against your client. Is that it?

MR ODGERS: That sounds very much like it, your Honour. I am hesitant in the sense that I do not want to - - -

KIRBY J: Well, I offered you an olive branch earlier - - -

MR ODGERS: You did and I did not take that one but - - -

KIRBY J: - - - but it was slapped back in my face but I saw Mr Smith giving you all sorts of little pieces of paper presents from the Crown. I do not know whether any of those were of any help because he is as complicit in this course as you are.

MR ODGERS: Yes, he is lucky. He does not have to answer these questions.

GLEESON CJ: If you had a ground of appeal before the Court of Criminal Appeal about the directions to the jury, there would have been a Rule 4 question, would there not?

MR ODGERS: Yes.

GLEESON CJ: You would have needed leave to raise that ground of appeal?

MR ODGERS: Can I say in response to that, what happened at the beginning of the trial made it clear that defence counsel was seeking a ruling that evidence in respect of witness one could not be used to prove count 2 – if I have made that clear. He sought that ruling as a preliminary step in seeking to persuade the trial judge to sever the trials. It is implicit in that that the defence case was or the defence position was that the jury should not use evidence of witness one to prove count 2 but, of course, no application was made for that at the end of the trial and the directions - because the judge had made the ruling at the beginning of the trial that it could be, so that how the trial proceeded was all contingent on what had happened at the beginning and the ruling his Honour had made.

GLEESON CJ: Then it follows, does not it, that whether it is open or not to you to make it at this stage, your real complaint is not that the evidence was admitted. Your complaint is that the counts were not severed?

MR ODGERS: Yes.

GLEESON CJ: You also want to complain or want leave to complain about the way the judge directed the jury?

MR ODGERS: Yes, I think, with respect, that is correct. Yes, as I understand the situation, there are two fundamental complaints that his Honour erred in not severing the counts and that there was – to take Justice Kirby’s point - a House v The King error because he misconceived the applicable law bearing on that question. The secondary challenge is - although we had not intended to advance it today - that the trial judge erred in allowing the jury to use the evidence of witness one to prove count 2, and to the extent that Rule 4 is a question, I have given the answer that the submission made at the beginning of the trial seeking a separate trial on the basis that it could not be used again, that witness one could not be used on count 2. The ruling adverse to the appellant at that stage meant that there was no advantage to be gained from re-arguing the proposition at the end of the trial in terms of proper directions to the jury. The judge had ruled that was the end of the matter.

GLEESON CJ: The decision in Pfennig, as you will have noticed, was a unanimous decision, as was the decision in a lot of these cases where people are in heated disagreement about the meaning of the similar facts rule.

MR ODGERS: Yes.

GLEESON CJ: It must be implicit in your argument that if the judge had applied what you say is the proper approach to the Evidence Act, the outcome would have been different on the facts of this case.

MR ODGERS: Yes.

GLEESON CJ: At some stage you will need to explain that also.

MR ODGERS: I understand.

KIRBY J: You did tend to gloss over the facts a little in your submissions, Mr Odgers.

MR ODGERS: Which submissions were they, your Honour?

KIRBY J: The first submissions - - -

MR ODGERS: I do not know that I had a big opportunity to go to all of that, and I will proceed to it now, unless there is - - -

KIRBY J: Well, you had gave us an awful lot of material on what judges have said about the similar fact rule - - -

MR ODGERS: I am sorry, the written submissions, your Honour?

KIRBY J: The written submissions concerning - - -

MR ODGERS: Yes, I do apologise.

KIRBY J: - - - the facts of your client were, as it were, touched on but lightly. Maybe that was because you thought danger lay in that direction.

MR ODGERS: No, your Honour, not at all. Because of the way the matter had proceeded in the Court of Criminal Appeal, and we are to a significant extent responsible for that, as is apparent – I am sorry, your Honour?

GLEESON CJ: You must be leading up to an application to amend something.

MR ODGERS: I think I must be. I very much sense that, your Honour. Precisely the form of the application – can I put that to one side and come back to your Honours?

GLEESON CJ: Well, not too much later. Yes, you are not necessarily of absolute certainty to get leave to amend.

MR ODGERS: No, I do understand.

GLEESON CJ: Shall we adjourn for five minutes to enable you to consider what kind of application you want to make? If you have reached a view as to what kind of application you want to make, you can state it onto the transcript, and if you ultimately get leave to make some amendment, then you can put it in writing after the luncheon adjournment.

MR ODGERS: Yes.

GLEESON CJ: All right. We will adjourn for a short time.

AT 11.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.15 AM:

GLEESON CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, we would be seeking leave to amend the notice of appeal so that the following three grounds of appeal would be advanced. The first is that the Court of Criminal Appeal erred in failing to hold that a miscarriage of justice resulted from the trial judge holding that certain evidence could be used as tendency and coincidence evidence.

The second ground is the trial judge erred in failing to sever counts in the indictment. I have not written “the counts”, your Honours, because we have looked at what defence counsel put to the judge. He did not seek to have every count separated, he sought to have them separated into groups. Over lunch, if leave is granted, we will write down precisely what he sought to do in terms of separating them.

Thirdly, the trial judge erred in directing the jury that evidence could be used as tendency and coincidence evidence.

McHUGH J: What orders would you seek? What is the ultimate order that you would seek from this Court?

MR ODGERS: The appeal be allowed, a new trial ordered, or, alternatively, the matter be remitted to the Court of Criminal Appeal.

GUMMOW J: To do what? To further deliberate on the only ground that was before them?

MR ODGERS: Yes, your Honour, but subject to this, that if the matter had been litigated in front of the Court of Criminal Appeal in the way that it has now become clear it should have been, no doubt if the court had accepted the argument we advanced, then the next question that would have been asked of us was, “Well, what is the appropriate step that should follow?”. No doubt the conclusion would have been reached that we should at that point have put on grounds of appeal in that court similar to the ones that we have now drafted, and then the court would have proceeded to consider – if they granted leave to amend the grounds of appeal in the same way – would have then proceeded to consider the question whether or not there was a miscarriage of justice – I am sorry, I withdraw that.

The ground in the Court of Criminal Appeal was that there was a miscarriage of justice resulting from an error made by the trial judge. The question would have been, “Well, what was the miscarriage of justice?”, and no doubt the answer that would ultimately have been given was that the trial judge erred in his discretionary judgment - - -

GUMMOW J: The ground was:

applied a wrong test in determining whether to admit certain tendency and coincidence evidence, and wrongly admitted that evidence.

MR ODGERS: I am sorry, your Honour, my recollection of the ground - - -

GUMMOW J: That was the ground in the Court of Appeal, page 924. The Chief Justice referred you to it earlier.

MR ODGERS: Yes, that is correct, your Honour:

a miscarriage of justice in that the learned trial judge applied a wrong test –

Again, it may be that that was not expressed as well as it should have been, but what would have happened, I apprehend, is that if the court had accepted the argument that the judge had applied the wrong test, the question would have been, “Well, what flows from that?”, the argument would have been that the appellant lost a chance of having the trials severed, and, if necessary, there would have been an amendment of the grounds of appeal to advance that more precisely.

McHUGH J: That is a miscarriage ground where arguably the proviso does not apply and where you have the onus of establishing a miscarriage of justice.

MR ODGERS: I think that is correct, your Honour, yes.

McHUGH J: And I think you may need a more specific order than just a new trial, because if you succeeded on your first ground you would have to be looking at some order in relation to the indictment.

MR ODGERS: Your Honour, it is appreciated. I have not worked out what the order was and I should have done that during the moment I had.

GLEESON CJ: Mr Odgers, am I right in thinking – this is only an impression I gained from a quick look at Acting Judge Holt’s judgment - - -

MR ODGERS: Acting Judge Holt, the trial judge, yes.

GLEESON CJ: - - - that the argument before him was conducted on the basis that it was accepted that if this was treated as tendency or coincidence evidence, inevitably there would be a joint trial – I mean by that a trial of all 11 counts. On the other hand, if he took a contrary view, it was by no means inevitable that there would be separate trials.

MR ODGERS: I do not know I can concede that. I have not looked, as I should have, closely enough at what was put by counsel for the Crown or defence counsel on that.

GLEESON CJ: That would be the case, would it not?

MR ODGERS: It is correct, your Honour, as I have conceded, that the judge has a discretion whether or not to sever the trials. The defence counsel was relying on the authority of this Court in Sutton and other decisions which, defence counsel contended, provided powerful arguments supporting severance.

GLEESON CJ: We had better see what Mr Smith has to say about your application.

MR SMITH: Your Honours, regrettably we oppose it. These matters were not argued before the Court of Criminal Appeal and so we have not been given the opportunity to respond at the intermediate appellate court to these matters. Many of them were not re-raised at the trial after the ruling. There were no further applications as the case went on, or anything of that sort.

KIRBY J: Yes, but did you raise the points that have now been raised by this Court before the Court of Criminal Appeal and say that all of this has been really predetermined by the severance question?

MR SMITH: I am not sure that we did that.

KIRBY J: I did not see a hint of it.

MR SMITH: We certainly said there was no miscarriage of justice and argued, as I understood it, that the material would have been admissible whatever test had been applied. Mr Rowling addressed on the actual factual evidentiary situation, Mr Cogswell addressed on the law, but Mr Rowling put that there was no miscarriage of justice and it is certainly in the written submission that was made by the Crown.

KIRBY J: But that is not quite the point.

MR SMITH: No.

KIRBY J: The question is whether the procedural point that has been raised this morning was ever advanced by the Crown before the Court of Criminal Appeal. There is not a hint of it in your written submissions to the Court.

MR SMITH: No, severance was not raised, but normally the Crown meets the appeal, the grounds that are lodged rather than - - -

GLEESON CJ: Well, the problem is that at an appellate level this issue that was dealt with by the Court of Criminal Appeal has for a long time been an answer in search of a question.

MR SMITH: Yes.

GLEESON CJ: The question arises often enough at the trial level, but when it gets before an appellate court, the court has to look at whether or not it is a material question.

MR SMITH: Yes.

GLEESON CJ: The Court of Criminal Appeal mentioned the fact that there have been a number of unsuccessful applications for special leave to appeal to this Court that have failed on the basis that there was no suitable vehicle.

MR SMITH: Certainly that is an argument we put to this Court on the special leave application, that this was not a suitable vehicle, because it was a joint trial with 11 counts of similar activity. Whilst my friend argues that severance should have taken place, it is not uncommon for joint trials to occur with multiple counts where the trial judge gives directions for the juries not to use material as discrete to one offence in finding guilty on another offence.

Now, I agree that this was a very powerful conglomerate of evidence and so similar that it would be very difficult, but, nevertheless, there was not a direction sought along those lines either, it was just severance. These are matters that it is difficult, we submit, for the Crown to meet in the High Court when the matters really have not been litigated below. Crampton, I think is the case where this Court said there had to be exceptional circumstances before leave was granted, and I submit that this is not a case where exceptional circumstances can be made out in that that issue of severance was argued at the trial and lost, and was not raised again.

KIRBY J: Yes, I take the force of what you have said, and it is a very powerful argument, but the argument to the contrary is wrapped up in the severance was the determination of whether this evidence was going to get in.

MR SMITH: Yes.

KIRBY J: And that, therefore, as it were, it was an ingredient in the severance decision and has been tendered to the Court of Criminal Appeal and to this Court as a separate question that is potentially important. If, for example, the Court were of the view that all of this talk about Pfennig and common law decisions is irrelevant to the consideration of the statute, which is your primary submission - - -

MR SMITH: Yes.

KIRBY J: - - - then it would be as well if that were said, would it not?

MR SMITH: Well, yes, your Honour.

KIRBY J: That, as I understood it, was the point upon which the appellant and you came to this Court with your agreement that that is how we would deal with it. If, in fact, the appellant were to succeed and persuade us that common law rights remain unless they are taken away and it is involved in the statute and so on, then you have to say, well, where does that lead in this case? But if the very strong submission you have made is sustained, then that is an important thing for this Court to say and it puts at rest all this talk, at least in the States that have the statute, of Pfennig and the common law. You just look at the statute.

MR SMITH: Your Honour, we are not seeking to avoid this Court making a decision on the proper interpretation of the Evidence Act, certainly not. We want it to. We requested a five judge Bench be convened in the New South Wales Court of Criminal Appeal for this matter to clarify because there were two lines and we thought we had clarified it then. But taking the question of severance, there are aspects of severance that should have been argued at a lower court, such as could certain charges be dealt with together? Even where tendency evidence may be admissible, it might be admissible only between matters in this case, for example, where a car is sighted linked to this man and a telephone call is made – they all be dealt with together. There are other types of offences, where there is just a description given of the man.

There was a case that came before this Court, if I recall, about 1989 of Taylor, in which I appeared at the lower court against Mr Game, involving a schoolteacher in a kindergarten where there were a number of different types of sexual activity alleged to have been made and Judge Badgery-Parker, as he was then, directed that there be three separate trials even though there were, say, twelve counts and there were different types of activity that were run together. As I understood it, special leave was refused by this Court on that matter, but the Court of Criminal Appeal dismissed the appeal.

So there are aspects of severance that do not involve 11 separate trials, but none of this has been argued at the Court of Criminal Appeal. I submit that in the face of the way the question was put in the ground of appeal, it was not really the Crown’s job to start raising that whole question because it just was not raised in the ground of appeal directly.

KIRBY J: The problem is that we stand on the brink now, it seems to me, on the point that has been raised this morning and on the submission you have just made, of considering whether special leave should be rescinded and that leaves the decision of the Court of Criminal Appeal standing where there is an awful lot of discussion about Hoch and Pfennig. With all respect, at least as a preliminary view, it is not the correct way to construe a statute whose purpose was to have a new dispensation so that people do not have to carry around large tomes of evidence law, but they have the statute.

GUMMOW J: You won in the Court of Criminal Appeal.

MR SMITH: We won there, yes.

GLEESON CJ: They just applied the statute, did they not?

MR SMITH: They just applied the statute, they said the statute - - -

GLEESON CJ: Like the trial judge.

MR SMITH: Yes, and we would submit that that was the correct interpretation. That is what we are putting now.

KIRBY J: They did so with a great deal of reference to whether they preferred Justice McHugh in Pfennig and it is not really to the point, with all respect, under the statute. Water has passed under the bridge.

MR SMITH: Well, except that where you are talking about propensity evidence or tendency evidence, I do not know that you can totally ignore how those expressions have been used in the past and the questions of prejudice that do arise.

GLEESON CJ: The ideas that were considered in Pfennig, Boardman and Makin are still around and relevant to the application of the statute.

MR SMITH: They are and we have not shrunk from that proposition that we have submitted a particular aspect of the Pfennig test usurps the function of the jury, in effect, and that is something that the Canadian Supreme Court has agreed with and, we would submit, the British cases support our proposition too on that aspect. We want to meet that aspect, but it is just that if we get down into matters that have not been previously litigated, it is very difficult for us, but nevertheless, there is a man in gaol who has been convicted. His convictions have been confirmed. We concede that and that there is a justice question there as to - but if I could just seek some instructions from my - but I really have not anything further to say.

HAYNE J: Well, before you sit down, Mr Smith, paragraphs 94 and 97 of the Court of Appeal judgment, those are the reasons of the Chief Justice.

GUMMOW J: Page 959.

HAYNE J: Thank you. I had read as establishing as the decision of the court that “substantially outweigh” is not to be construed by reference to Pfennig, see paragraph 94, and that the statute is to be read consonant with what was said in Papakosmas in its own terms, see paragraph 97.

MR SMITH: Yes.

HAYNE J: Now, two questions (1) do you contend the Court of Appeal said anything different, and (2) would you, on this appeal, seek to contend for any different proposition from those two that I have identified?

MR SMITH: We contend for what his Honour the Chief Justice has said at paragraph 94 and 97.

KIRBY J: You say that you apply the statute by applying the Pfennig test by way of explication?

MR SMITH: No, I do not think that is what - - -

HAYNE J: It is the opposite of what the Chief Justice - - -

MR SMITH: It is the opposite. You apply the wording of the statute in accordance with Papakosmas.

GLEESON CJ: The wording of the statute is brief and can only be understood and applied in the light of a whole lot of issues that have been considered over many years and many cases, but what the Court of Criminal Appeal has held in this case is that in applying the statute you do not apply the “no rational explanation” test that was favoured by the majority in Pfennig and that is the position for which you have come here to contend.

MR SMITH: That is our position. The question of transcending or matters of that sort, the probative prejudicial aspect, the wording of the statute has similar wording to those common law expressions, but the “no rational explanation” test is a specific provision which appears to have started in Sutton, moved through Hoch, Thompson, and ultimately come to rest in Pfennig and stayed there ever since. That is the primary aspect of the Pfennig decision that we certainly argue against and we submit that is what the Court of Criminal Appeal held against.

GLEESON CJ: The Court of Criminal Appeal held that if that is part of the common law, as the majority in Pfennig said, then it is not part of the statute.

MR SMITH: That is right, except the Chief Justice also said, there may be cases - - -

GUMMOW J: That is paragraph 96, which is a bit of a back door.

MR SMITH: Yes:

My conclusion in relation to the construction of s101(2) should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made.

It may be that if you had similar circumstances to Pfennig and that was all the evidence you had, then that might be what he is talking about. It is not clear to me what his Honour was really referring to there, but this certainly is not a case like that, in our submission.

GLEESON CJ: He might have been responding to what Justices Hidden and Buddin were troubled about.

MR SMITH: Yes, and, again, even though they agree with the Chief Justice and his reasons, they seem to be really jumping back to the Pfennig - - -

GLEESON CJ: This is the ultimate problem. This is a subject on which a lot of people have said a lot of things over a long period of time, and, not surprisingly, they have said some different things, but the question in the particular case is whether the difference is determinative of the outcome.

MR SMITH: Yes. It will be our submission in this case that it is not, but for the clarity of interpretation of the Evidence Act that the statutory interpretation adopted by the majority of the Court of Criminal Appeal is the appropriate one. We are happy for – I mean, I have put my submissions as to whether I agree with the proposed amendments. We would also be anxious for this matter to be dealt with in this hearing, if possible, this whole question, so that – perhaps I am going back a bit from my submissions – I submit that the Court should hear the whole appeal and determine whether to allow the amendments.

GLEESON CJ: We do not give guideline judgments.

MR SMITH: I know you do not, your Honour, no.

CALLINAN J: And to the references that Justice Hayne gave you should be added, I think, paragraph 55 at 713 and paragraph 63 at page 714.

MR SMITH: That is book 4, is it?

CALLINAN J: Pages 713 and 714, paragraphs 55 and 63.

MR SMITH: Yes, I am just - - -

HEYDON J: I think his Honour is referring to the report of the case rather than the appeal book. I think he wants you to look at paragraph 55 on page 951.

CALLINAN J: Yes, I am sorry.

MR SMITH: I see, thank you.

CALLINAN J: Yes, paragraphs 55 and 63.

MR SMITH: Yes, your Honour.

CALLINAN J: His Honour could not have made it clearer, could he?

MR SMITH: That he did not - - -

CALLINAN J: The Chief Justice?

MR SMITH: Well, he did read - - -

CALLINAN J: That the statute had been applied and correctly so, without any attempted explication of Pfennig’s Case.

MR SMITH: Yes. There was just a note that I passed to Mr Odgers that his Honour Justice Kirby mentioned.

KIRBY J: You seem very suspicious of it.

MR SMITH: It was referring to paragraphs 63 and 64 in response to that earlier question of whether the Court of Criminal Appeal ever referred to the judge’s decision, the trial judge’s ruling, and it just seemed to me that 63 and 64 really was at its highest. They are saying there, well, basically:

I am not prepared in these circumstances, to conclude that his Honour did apply the Pfennig test, in some unstated manner, by way of explication of the statutory test.

It is, accordingly, necessary to decide whether the Pfennig test must still be applied.

GLEESON CJ: If he had have applied what was called the Pfennig test, it could only have been favourable, or more favourable, to the accused, could it not?

MR SMITH: Yes. Well, it would. It is a strict test.

GLEESON CJ: Yes.

MR SMITH: But, in our submission, we still would have satisfied.

GLEESON CJ: It might more accurately be called the “no rational explanation” test.

MR SMITH: That is right.

GLEESON CJ: That is the sort of thing that counsel for accused people like to talk about because it sounds strong advocacy. But, as I said earlier, the decision in Pfennig was unanimous.

MR SMITH: Yes.

GLEESON CJ: All right. Is there anything further you want to say, Mr Odgers?

MR ODGERS: Yes, just briefly, your Honours. There is a question of general importance which is raised by this appeal which is whether the “no rational view” test should be applied by judges in criminal courts in New South Wales and Tasmania and the ACT.

GLEESON CJ: Now, that question has been solved if we leave standing the judgment of the Court of Criminal Appeal, has it not?

MR ODGERS: It has been answered by that court.

KIRBY J: But without our hearing your submission.

MR ODGERS: Quite. It is a question that arises not just in terms of severance issues, but also admissibility, in cases where it is not multiple counts but you are seeking to lead evidence of other offences which are not the subject of particular counts. It also arises in terms of proper directions to juries. So we do respectfully submit that because of the general importance of that question, this Court should be prepared to hear the appeal. I would also submit that it is not a case of a guideline – I am sorry, your Honour the Chief Justice used the language of not giving advisory opinions. The question is whether or not the trial judge erred in not applying the “no rational view” test.

GLEESON CJ: No, the question is whether the trial judge erred in not severing the counts.

MR ODGERS: I understand that, but I have sought to contend – I do not know whether I have been successful – that the question I have put to your Honour is an important preliminary question before one would then go on to ask the question or whether or not he erred in failing to sever, which in turn raises questions of whether or not there was a miscarriage of justice in this case because of what we submit was the error he made in failing to apply the “no rational view” test. So we contend that a question arises, it is available to be determined on the materials in the appeal books, whether or not he erred on that question, and it indirectly raises issues about whether there was a miscarriage of justice in this case.

If it is necessary that the matter be remitted to the Court of Criminal Appeal to determine severance questions, then we would respectfully submit that that is an option that should be contemplated, given the importance of resolving or this Court addressing the question for uniform Evidence Act jurisdictions of whether or not it is correct that the “no rational view” test not be applied, because it has enormous implications in criminal trials in those jurisdictions, in terms of how lawyers approach these issues, how judges deal with them, the amount of time that is going to be spent, the certainty, the predictability of outcomes, and obviously enormous consequences in terms of severance, as I think is clear now. I do not think I can add anything further.

GLEESON CJ: Very well. We will adjourn for a short time to consider the course we will take.

AT 11.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.57 AM:

GLEESON CJ: Mr Odgers, on your application for leave to amend your notice of appeal, we would like to give you the opportunity to say anything you want to say orally, in addition to your written submissions or by way of development of your written submissions, on the question of whether or not the Court of Criminal Appeal was right in its approach to the construction of the statute.

MR ODGERS: Certainly, your Honour.

GLEESON CJ: Now is your opportunity.

MR ODGERS: Your Honour, just so I understand this, that in its essence was what I had thought I had come here to do today and I was going to spend several hours making those submissions. Is that - - -

GLEESON CJ: Now is your opportunity.

MR ODGERS: Thank you, your Honour.

KIRBY J: Just before you start, can I get it clear in my mind that you concede that unless you get the amendment to challenge the severance ruling of the primary judge, you cannot succeed in the appeal?

MR ODGERS: We have sought leave to amend - - -

KIRBY J: I realise that, but unless you get - - -

MR ODGERS: I am sorry, your Honour, in respect of the directions that the trial judge gave?

KIRBY J: No, the decision of the trial judge to sever the first two counts - - -

MR ODGERS: I understand that.

KIRBY J: - - - and then to gather the others together.

MR ODGERS: Yes.

KIRBY J: Unless you can get leave to amend your grounds of appeal, as you have sought, to challenge that ruling, you cannot succeed in the appeal before this Court.

MR ODGERS: I am just reluctant to make that concession, your Honour.

GUMMOW J: I am sure you are.

MR ODGERS: Your Honours appreciate that. I certainly have great difficulties, I can go that far - - -

KIRBY J: Well, would you just, whilst you are addressing us on the other point, let your subconscious mind tarry upon that issue and come back to it before you finish, in order to clarify whether you could succeed without the amendment.

MR ODGERS: Yes, certainly, your Honour.

KIRBY J: And if so, to indicate how.

MR ODGERS: Yes, your Honour. Now, the question I have been asked to focus upon is whether or not - - -

GUMMOW J: It is a simple one, really, it is the construction of the section.

MR ODGERS: Yes.

GUMMOW J: And we will not be assisted necessarily by any exhaustive recounting of what various people have said about it.

MR ODGERS: No, I appreciate that. Can your Honours just bear with me for a minute while I restructure what I was going to say?

GUMMOW J: Yes.

HAYNE J: It is the fun of appearing here, Mr Odgers.

MR ODGERS: I appreciate that, your Honour, and I will remember it for a long time. Your Honours – and you will tell me immediately if I am proceeding in a way that does not assist your Honours – what I propose to do is to take your Honours through the judgment of Chief Justice Spigelman where he - - -

GUMMOW J: We have read that.

MR ODGERS: Yes.

GUMMOW J: We are not here to have some book readings.

MR ODGERS: No.

HAYNE J: Why is it wrong, Mr Odgers?

MR ODGERS: Yes, all right. Your Honour, I will do it without my notes.

McHUGH J: Yes, well, that is probably a better way.

KIRBY J: You posed an attempt to insert into the statute the language of the strict test in Pfennig. The Chief Justice held that that was not consistent with the language of the statute. What is wrong in that holding?

MR ODGERS: Yes. Our submission is that in applying the balancing test in section 101 a court should begin, firstly, with the proposition that that test was intended to replicate the common law test for the admissibility of similar fact and propensity evidence.

HAYNE J: Why?

MR ODGERS: Because that is what the explanatory memorandum to the evidence Bill said.

KIRBY J: Only yesterday in a special leave application before Justice Callinan and myself in Sydney you were making the point that the Evidence Act brought in a new regime that allowed - to the astonishment of Justice Callinan from the Queensland background – evidence that just would not ordinarily be admitted. This is a new regime.

MR ODGERS: Yes, all right. Perhaps I should try to distinguish this case from Papakosmas because that is the first question. In Papakosmas this Court was considering provisions – the hearsay rule – and the hearsay provisions created new exceptions to the hearsay rule, and the question the Court was considering in Papakosmas was whether, in the exercise of the discretions, particularly in section 136 of the Act, the discretion should be utilised in a way which effectively brought back the common law position.

KIRBY J: I am sorry to make your task more difficult, but should we not start with first principles. We have a statute. It is a reforming statute. It was designed to introduce many new concepts. This Court has said many many times recently, you start with the statute. Papakosmas said that in this context.

MR ODGERS: Your Honour, I began with the explanatory memorandum which provided, as the Interpretation Act says, relevant information as to the intention of the provision. I was distracted a little by the question of the hearsay rule and all of that.

KIRBY J: There is a point concerning a difference between the text of the statute and the Law Reform Commission report. Does that throw any light on the history of the development?

MR ODGERS: The position is that the Law Reform Commission reports do not provide any substantial assistance in the proper interpretation of section 101 because that provision is significantly different from what was proposed by the Australian Law Reform Commission. I have annexed to the reply, your Honours, an appendix from the final report of the Law Reform Commission and your Honours will see that the provision that was drafted by the Law Reform Commission, which was clause 89, is in very different terms to section 101.

McHUGH J: Is not your argument stated in four propositions? You start with (1) that the explanatory materials to the Evidence Bill 1993 asserted that section 101 reflected the rule applied at common law in relation to what was commonly referred to as “similar fact” evidence; (2) the High Court made it clear on a number of occasions that the common law test of admissibility in this area can be expressed in different ways; (3) in Hoch’s Case, Justices Brennan and Dawson spoke about probative force clearly transcending its merely prejudicial effect; (4) there is no difference between probative value substantially outweighing it and probative force clearly transcending; (5) you are not saying that Pfennig replaces the statutory test, you simply say that it gives you guidance as to the content of the term “substantive”. Is that your argument?

KIRBY J: I think you added (6) that where the common law defends basic rights, you need clear legislation that will derogate from what has been a settled principle of common law, and the statute does not do that or should not be construed to do that, but to give effect to the common law.

MR ODGERS: It may be just an amendment of what your Honour Justice McHugh – the last proposition you put to me, that to support the proposition that the provision in the Act should be applied with the benefit of the guidance that the High Court - - -

GUMMOW J: The guidance is rather confused. That is the problem.

MR ODGERS: I understand that, your Honour, and I will have to go back to develop - - -

GUMMOW J: But that is the problem, is it not? What Justice McHugh put to you just now fairly had several expressions.

MR ODGERS: Well, your Honour, that is true. At common law, there is some uncertainty as to the scope - - -

GUMMOW J: Well, why not say the statute cleared it up?

MR ODGERS: No, your Honour, because the argument we advance - - -

GUMMOW J: Why not prefer that to the construction of the statute that is confused with this Boy Scout notion of guidance?

MR ODGERS: The answer, your Honour, is that as the majority of the Court said in Pfennig, the common law principle is a balancing test. That applies to similar fact and propensity evidence, and about that there is really no disagreement. You will not find any - - -

GUMMOW J: Well, this intrusion of the word “balancing” into various legal propositions in the last 50 years has been very deleterious.

MR ODGERS: Precisely, and that is precisely why the majority of the High Court in Pfennig held that in order to give proper effect to that principle, the balancing test principle, it was necessary to formulate a more precise test to ensure that the principle articulated in the form of the balancing test was properly applied, so that, for example, a court could safely conclude that the balance required admission of the evidence.

GUMMOW J: Well, the statute just used the words “substantially outweighs”.

MR ODGERS: I will have to address that in due course and we do, in the written submissions, but if I could just remain with the point that I am attempting to remain with which is that the argument we advance as to why the Court of Criminal Appeal was wrong and the reason why we say that courts in Evidence Act jurisdictions should, or must, apply the “no rational view” test is precisely the same reasons as why the High Court, in Pfennig, as they had held effectively unanimously in Hoch, held that the uncertainties of the formulation, or the principle expressed as a balancing test, require more guidance to trial judges and courts to ensure that that principle is properly applied.

McHUGH J: What you are really compelled to say though, is it not, is that as a matter of law in this particular class of case, probative evidence will never outweigh a prejudicial effect of the evidence unless it satisfies the “no rational view” test. I think you are forced to say that, Mr Odgers.

MR ODGERS: I am reluctant again, your Honour, to concede that. Our submission is that a court could only safely conclude that the probative value substantially outweighs the prejudicial dangers with the evidence.

McHUGH J: But does that not come to the same thing, Mr Odgers?

MR ODGERS: Maybe, your Honour. It is just that I have chosen a form of words which is somewhat different from what your Honours put to me.

McHUGH J: It is a bit softer.

MR ODGERS: Can I just clarify what we are saying. We are saying a court must apply 101 but that if 101 reflects the common law principle, the guidance offered by the High Court in Pfennig and Hoch as to how that principle should be applied necessarily is something that should be taken into account, must be taken into account, by a judge in applying 101.

McHUGH J: How does your test apply in, let us say, the facts of Makin, particularly if you accept the view I expressed in Pfennig in which Mr Hoffman, as he then was, expressed in a well-known article of his that it is really probability reasoning rather than propensity reasoning. It is difficult to see how there is any prejudice in that sort of situation. How do you apply it there or do you say, well that is an area where the Pfennig test does not apply?

MR ODGERS: My answer is to say if the Pfennig test applies, under the common law, to that evidence, if it would apply under the common law to that evidence, then a judge in New South Wales and Tasmania and wherever would apply the Pfennig test so the question that comes - - -

McHUGH J: In your favour, it does seem to me that the majority in Pfennig would have applied that test to the Makin Case.

MR ODGERS: That was going to be the next step of my submission, your Honour, yes, that as I understand it the majority of the High Court held that certainly in respect of propensity reasoning, that you would apply the “no rational view” test and I am not sure that your Honour really differed from that to any significant extent. Can I just say, just for a moment there, it is not necessary for the purposes of the Evidence Act jurisdictions to ask the question whether or not it applies to propensity evidence more generally because, of course, you have to get through the tendency evidence gate to get to 101 so that 101 only applies to propensity reasoning and coincidence evidence, if I have made that clear to your Honour.

McHUGH J: Yes.

MR ODGERS: So the Pfennig test applies to propensity reasoning, no real doubt about that, and that is tendency evidence, and it applies to what the court called similar fact evidence. Similar fact evidence – Makin appears to be regarded as a classic example of similar fact evidence, Hoch is regarded as an example of similar fact evidence, Sutton – multiple rapes of similar types – is regarded as a classic case of similar fact evidence. There are different categories of similar fact evidence where different reasoning is involved; whether it is to prove identity or to rebut an innocent explanation, as your Honour appreciates.

The answer to your question is if the evidence in question, which falls within the coincidence evidence formulation in the Evidence Act, if it is similar fact evidence for the purposes of the Pfennig test then the answer is the court, applying 101, should apply the “no rational view” test because, for the same reasons that the majority of the High Court in Pfennig and the Court unanimously in Hoch held, that only then could a judge or a court be safe to conclude that the probative value of the evidence is sufficient to outweigh, or substantially outweigh the risk of prejudice - - -

McHUGH J: That must be, I think, because as a matter of law the judge is bound to come to that conclusion. I think it is only a matter of words when you say “safely” or - - -

MR ODGERS: Yes. Your Honour, can I just expand on that?

McHUGH J: Yes.

MR ODGERS: We do also call in aid your Honour’s reasoning in Pfennig, not all of it. There were differences between your Honour and the majority.

McHUGH J: Yes.

MR ODGERS: We do call in aid your Honour’s observations about what that balancing test really is. Your Honour pointed out that to weigh probative value and prejudice is weighing incommensurables, to use the - - -

KIRBY J: You are back in the womb of the common law. The weighing is required by the statute so that you cannot be complaining about the statute.

MR ODGERS: With respect, your Honour, we say the explanatory memorandum makes it clear - - -

KIRBY J: The explanatory memorandum cannot overrule the words of Parliament. The Court has said that many times and you are going on here, instead of construing the statute – if you came up here with the Limitations Act you would not be going back into all of this old law. You would be parsing and analysing the words of the statute. That is what we have asked you to do.

MR ODGERS: Your Honour, the submission I make is that the words of the statute properly understood convey a principle, which is this, that the tendency evidence or the coincidence evidence should be sufficiently probative that in the particular case the evidence is sufficiently probative to justify admission, notwithstanding the risks of an unfair trial that inevitably exist when this type of evidence is admitted. The formulation of probative value substantially outweighing prejudicial dangers is no different from saying it must clearly transcend prejudicial dangers, or it must be strongly probative in order to justify admission, notwithstanding risks of prejudice or, to use other language, I think Justice Deane used a language of whether the evidentiary value of the evidence is sufficiently substantial to make it desirable in the interests of justice that it should be admitted. These are all different formulations of the same principle, which is - - -

GUMMOW J: Why depart from the words of the statute by employing a lot of synonyms? What you have just said are synonyms. How does that help anyone?

MR ODGERS: Because if the legislature has thought it appropriate to formulate the law in the form of a principle that - - -

GUMMOW J: Which has a lot of synonyms.

MR ODGERS: Which has a lot of synonyms, it is appropriate that appellate courts provide guidance to trial judges as to how they are to apply that principle in particular cases.

HAYNE J: I would have thought that the principal guidance to be offered to the trial judge is, first, to identify what it is that the evidence will prove; second, to identify what is said to be the prejudice that attends upon the admission of the particular piece of evidence; and then to apply the words of the statute to the circumstances thus revealed, rather than to search for some set of synonyms intended somehow to translate the words of the Act. In the end, debating the point at the high level of abstraction at which you are debating it simply leads us to a search for formulae which can be ritually incanted by trial judges. That is of no utility whatever.

MR ODGERS: I respectfully submit that it is precisely to ensure that trial judges do have a formula that they can meaningfully apply and do so in a predictable, consistent way that was what this Court sought to do with the purposes of the common law in Pfennig and that this Court should say trial judges applying the principle under 101 should also do. To answer the beginning part of your Honour’s question, it is, with respect, all very well to say that a judge should assess the degree of probative value in the particular circumstances and assess - - -

HAYNE J: Assess what it is trying to prove.

MR ODGERS: I am sorry, your Honour. As a step in the process of determining the probative value of the evidence, and to assess the – I should get the precise words of the provision - - -

HAYNE J: The point is not captious, Mr Odgers. It is exemplified particularly by this case. Let us assume that the evidence that is adduced is of one of the break, enter and steals in which there was no surrounding circumstantial evidence. All that was known was that there was a break, enter and steal at a country store of the kind concerned. Now, what is that tendered to prove? It proves the occurrence of an offence by someone. What does 101(2) have to say in determining whether or not that evidence is to be admitted or not? What is the prejudice from admitting?

MR ODGERS: The problem may be, your Honour, and I am not sure that this is going to answer your Honour’s question, that the prejudice arises from the other counts which are being used to prove the evidence directly relating to the other counts being used to prove that count.

HAYNE J: Just so. Therefore you take the case where there is the surrounding circumstantial case.

MR ODGERS: Yes.

HAYNE J: Let it be assumed that the jury are told, “Consider that count, whatever it is, first. Determine whether you are satisfied beyond reasonable doubt that the accused committed that count. If you are satisfied beyond reasonable doubt that the accused committed that count, then go on to consider count 1 where there was no surrounding evidence”. Then the issue for the jury would be whether the modus operandi was so distinctive that they could be convinced beyond reasonable doubt that it was the accused who had done it. Now, again, what is it that is being advanced as probative? Where lies the prejudice? That is the balance that is to be determined under 101(2) and what I am suggesting to you is that that process is not assisted by a search for some synonymous expression of the test identified.

MR ODGERS: Your Honour, in the example you have put to me, it is possible to isolate prejudicial dangers. I am returning to section 101. The word is:

any prejudicial effect it may have on the defendant.

I think I have to concede that that means “unfair prejudicial effect”, obviously enough. In the example - - -

HAYNE J: Or not that it is going to convict him. The bare fact that it is going to convict him is not prejudice.

MR ODGERS: That is why I conceded that, your Honour.

McHUGH J: But it is directed to the fairness of the trial. Do you not have to say that the problem with this sort of evidence is that common assumptions about the improbability of sequences are often wrong - - -

MR ODGERS: I was going to say that, your Honour.

McHUGH J: Yes, and therefore it tends to - - -

MR ODGERS: It is not just that, your Honour. Can I - - -

McHUGH J: Yes, certainly.

MR ODGERS: Responding to your Honour Justice Hayne, in identifying what are the dangers of unfair prejudice in the scenario you have put to me, one is – and this I would put as being less important than the next – that a jury will give too much weight to the improbabilities – I am not expressing it clearly, but will wrongly assess the degree of probability that this could be explained by coincidence, to use the language of Justice Murphy in Perry, I think, that commonsense assumptions about coincidences are often wrong. That is the less important prejudice, risk of unfair prejudice. The more important one is that once they have concluded that he did the first, then they know he is a person who commits break and enters.

There is the risk that they will say, “Therefore he is the kind of person who does this kind of thing, and therefore, it is likely that he committed the second one. Also, frankly, we are not going to be too troubled if we get it wrong, we are not going to be too punctilious about the application of standard of proof in criminal trials. The fact that he has committed one, it is likely he has committed the second because they are very similar. We are not going to have too much trouble in convicting him of that, given his obvious criminal propensities. If he had not done this second one, he must have committed others he has not been caught for. It is not going to be a problem for us to convict”.

KIRBY J: But all of this is wrapped up in the statutory word “substantially”.

MR ODGERS: I understand - - -

McHUGH J: And so is not the way you have to put your argument, rightly or wrongly, along these lines? You have to say that the collective experience of the judiciary shows that the prejudice flowing from tendency and coincidence evidence is such that the probative value of evidence cannot substantially outweigh the prejudicial effect of that evidence unless the trial judge concludes that there is no rational view of that evidence which is inconsistent with guilt.

MR ODGERS: I think I have endorsed what your Honour has said to me, although I put it in slightly different terms, not so much “cannot”, but it would be unsafe to conclude that it can unless there is no rational view of it consistent with innocence.

McHUGH J: You have really got to invoke the collective experience of the judiciary over a long period of time.

MR ODGERS: Precisely, and that is precisely what this Court did in Hoch and Pfennig. It invoked the collective experience of the judiciary that in order to safely conclude that the evidence was sufficiently probative to justify its admission, notwithstanding the dangers of unfair prejudice, that it had to meet the “no rational view” test. That is the nub of our argument.

If this Court, unanimously in Hoch and almost unanimously in Pfennig, concluded that that is the conclusion that judicial experience led to, so it must also be the case in respect of tendency evidence and coincidence evidence, which plainly fall within the scope of propensity evidence and similar fact evidence considered by the High Court in Hoch and Pfennig, that judicial experience leads to the conclusion that you can only be satisfied that the probative value substantially outweighs the prejudicial effect that the evidence may have – I emphasis “may” have – where there is no rational view of it consistent with innocence.

GLEESON CJ: When you say, “no rational view of it”, you mean no rational view of that particular evidence?

MR ODGERS: Whatever Pfennig test means - - -

McHUGH J: It means that category of evidence. That is what Pfennig says, does it not? It says, “Not that evidence, but that category of evidence”.

MR ODGERS: Quite, your Honour.

GLEESON CJ: Are you not allowed to consider that evidence in the light of the other evidence?

MR ODGERS: Plainly, yes, I accept that, that in determining whether there is a rational view of it consistent with innocence, you must look at all the evidence together. You do not look at it in isolation, that is well established, but can I just return to Justice Hayne because this really is the nub of the issue.

The view that Chief Justice Spigelman and the Court of Criminal Appeal adopted was to say that you do it on a case by case basis. You look at the probative value; you make a judgment about that. You look at the prejudicial effect; you make an assessment of that. You balance them together in some sort of interesting philosophical way. You decide whether the probative value substantially outweighs the prejudicial effect, whatever that means, and you apply the test.

The submission we make is that the assistance that this Court has provided for the application of the same principle at common law should be applied when judges are applying 101, so that - - -

KIRBY J: We know you say that, but the problem is there is a big difference between an on “no rational view” test and a “substantially outweighs test”, and our duty is to the command of Parliament. The Constitution tells us that.

MR ODGERS: Of course, your Honour. Can I make one thing clear that perhaps is not entirely clear. We are not contending that whenever a judge comes to apply 101 he or she must always apply the “no rational view” test. To that extent, we are not differing from - - -

HAYNE J: Is that not fatal to your argument?

MR ODGERS: No, your Honour, I will explain why in a moment. To that extent, we are not differing from Chief Justice Spigelman in the Court of Criminal Appeal, but there is a critical difference between what we say and what was held. The Court of Criminal Appeal held that there would be circumstances where an assessment of the prejudicial effect is such that it is regarded as so high in the particular circumstances that the evidence will only be sufficiently probative to substantially outweigh it where it meets the “no rational view” test. That is the view that the Chief Justice expressed.

The position we advance is that tendency and coincidence evidence which is caught by 101 may include within it evidence to which the Pfennig test would not apply at common law. For example, tendency and coincidence evidence, to which 101 applies, may reveal nothing about criminal behaviour or anything discreditable at all about the accused. It would be absurd to - - -

GLEESON CJ: Well, that must be right because those two sections apply in civil cases.

MR ODGERS: Well, 101 only applies in criminal proceedings, but yes.

GLEESON CJ: Yes, but 97 and 98 - - -

MR ODGERS: Section 97 and 98 apply in both civil and criminal proceedings.

GLEESON CJ: - - - apply in civil cases.

MR ODGERS: And there is nothing in there about criminal conduct or discreditable conduct, even in criminal proceedings. Section 97 and 98 would apply to evidence that, for example, the accused was seen to regularly walk down the street at 10 o’clock every morning to go to the milk bar. Subject to arguments about whether that might be characterised as habit or something else, that would be potentially tendency evidence to which 97 and 101 would apply. As I have said, it would be absurd, and we certainly do not contend that the “no rational view” test should be applied to that evidence.

HAYNE J: So what are you doing with the words? What are you doing with the words of 101?

MR ODGERS: What we are doing is we are contending that when a court comes to apply those words to a particular category of evidence to which the Pfennig test at common law applies, so it is that a judge applying 101 should also ask the question required of a common law judge, that is, “Is there a rational view of the evidence consistent with innocence?”. Bear in mind, your Honours, that Pfennig was dealing with a particular category of evidence, that is, propensity evidence, similar fact evidence, which disclosed criminal conduct – it may have been a little broader than that, but that is enough for the moment – which disclosed criminal conduct. It was that evidence which is so potentially prejudicial; it does not need me to persuade you of that. Revealing to a jury that an accused has committed other crimes or adducing evidence tending to show that he has committed other crimes carries with it obvious prejudicial dangers.

It was in respect of that evidence, subcategorised as propensity evidence and similar fact evidence, that the High Court said in Pfennig, the majority, “Judicial experience leads us to the view that the evidence will only be sufficiently probative to justify admission notwithstanding those dangers where it meets the no rational view test”.

So it is, we say, that when a judge, coming to apply 101, asks the first question, “What is the nature of this tendency or coincidence evidence?”, if the answer to that is, it is evidence of the sort to which, at common law, the “no rational view” test would be applied or must be applied in order to safely conclude that the evidence is sufficiently probative to be admissible, so it is that judge should then say, “Well, I should/must apply the same test so that I can safely conclude that the probative value of the evidence in this case substantially outweighs the prejudicial effect that the evidence may have”.

GLEESON CJ: So, on your submission, the “no rational view” test is a test of safety?

MR ODGERS: That is precisely what the majority of the Court said in Pfennig. I know I have said this earlier, I do not know whether I said it to completion. We draw comfort from what Justice McHugh said in Pfennig that - and can I read from what his Honour said, and this is in the written submissions at page 7 that:

the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term “outweigh” suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial . . .

If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

We call that in aid to support the proposition which we have advanced in the written submissions that all the different formulations, unsatisfactory as they are, are all designed to convey the same principle, that is, that similar fact evidence or propensity evidence or tendency evidence or coincidence evidence – whatever terminology you seek to use – is only sufficiently probative to justify admission when – I am sorry, I have put that badly. All the formulations are designed to ensure that the evidence is sufficiently probative that one can justify admission, notwithstanding the risk of an unfair trial.

KIRBY J: That does run straight into the Canadian observation, that that shows the higher the adverbs and adjectives an increasing lack of confidence in the capacity of the jury, with proper instructions, to work out whether or not the evidence is probative.

MR ODGERS: Your Honour, we are in the field of the quintessential example of evidence where the courts, through their judicial experience, have - - -

KIRBY J: Exactly, but we stand, as it were, at the question of whether we should read into a section of the statute which does not necessarily have that consequence, and you are trying to urge a view of the statute which, on one way, bolsters it up from the point of view of the accused. The issue of principle there is, why should we do that and not just stick to the language of the statute?

MR ODGERS: Yes, and, at the end of the day, I am relying on the reasoning in Pfennig to lead to the same conclusion in respect of the Act. I do not know if that is an appropriate time? I can explain that - - -

GLEESON CJ: You have another five minutes to go.

MR ODGERS: I have my watch – oh, I am wrong. It is another hour I have got.

GLEESON CJ: No, you have another five minutes.

MR ODGERS: Oh, five minutes, I am sorry – I am pleased, actually. Your Honours, perhaps the best thing I can do at this point is take your Honours to Pfennig to see how it is that the Court reasoned to the conclusion it did - - -

HAYNE J: What do we get out of that? We have read Pfennig. We are familiar with it. What do we get out of reciting it, Mr Odgers?

MR ODGERS: You get the reasoning which, we submit, should also be applied in interpreting 101. I have made a point - - -

HAYNE J: I thought we had got to the point where you were explicitly denying that you were construing 101. Indeed, you were saying that the test was one of safety concerning the result obtained.

MR ODGERS: Yes. My language may - - -

HAYNE J: That is a far cry from construing the section, because you seem to want to give the expressions used in the section differential meaning according to different circumstances.

MR ODGERS: I hope I am not trying to do that, your Honour. I am trying to demonstrate – I am adopting the logic that Justice McHugh put to me, that is, that if the statutory provision is intended to be the same principle as applies under the common law to certain evidence, then it follows inexorably that guidance provided by the High Court as to the proper application of that principle in respect of evidence under the common law will be applicable – that guidance will be applicable to the application of the statutory provision. I apologise for my poor use of language and repeating - - -

GUMMOW J: I do not understand how that is an exercise in statutory construction. This word “guidance” – what has that got to do with the words of the statute?

McHUGH J: Are you not really saying that the statute declares a principle rather than a rule which is to be mechanically applied?

MR ODGERS: Yes, I have certainly contended that a number of times, that it is a principle. It is the same principle as at common law, and not as a matter of statutory interpretation, but as a matter of almost logic, if this Court has provided assistance to the proper application of that principle under the common law, it must also follow, logically, that that assistance is going to be - - -

GUMMOW J: In the abstract. This guidance is all in the abstract.

MR ODGERS: No, your Honour, that is precisely not the point. It is not in the abstract. It is reflecting the practical reality of criminal trials and acknowledging that the experience of the courts is that these categories of evidence are very dangerous and that they prejudice the fairness of a criminal trial. The experience of the judiciary leads to the conclusion that the proper application of the principle necessitates a process of reasoning which leads to a conclusion that a court can only safely – and I know I have used this term “safely” – conclude that admission is required or legitimate or justified under the principle where the evidence meets a high standard of probative value, which is the standard that was articulated in Pfennig.

KIRBY J: Has any judge in the implementation of the statute and analysing and construing the statute said that? Did Justice Simpson say that in OGD?

MR ODGERS: OGD - she did not use that language but she said that a judge applying the statutory provisions could readily apply what the High Court had said in Hoch in respect of the common law to the operation of the provisions. Your Honours, this decision of the Court of Criminal Appeal as it is clear followed on a division of opinion within the Court of Criminal Appeal as to whether it should be a case of engaging in a case by case balancing or whether or not the “no rational view” test should be imported in the way that I have attempted to justify it and courts have held, without necessarily articulating the process of reasoning, and ODG is an example, that those principles can be readily applied to the statutory provisions. Not replacing the statute with the common law, but saying well, if the statute was intended to be the same as the common law, then authorities on the common law will necessarily assist in the application of the statute.

GLEESON CJ: Is there any case in which a court has held that the difference in the reasoning of the members of the Court in Pfennig was determinative of the outcome of the appeal? Is there any case in which the decision has turned upon whether you applied, for example, the majority approach in Pfennig or some different approach?

MR ODGERS: I cannot think off the top of my head, your Honour, but I will reflect on that over lunch.

GLEESON CJ: We will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, can I hand up the two documents. One is the application to amend the notice of appeal in respect of the grounds of appeal, and the other is an application to amend the notice of appeal in respect of the orders sought.

GLEESON CJ: Thank you.

KIRBY J: You have not forgotten in your subconscious mind the matter that I left with you earlier?

MR ODGERS: Your Honours, can I say this. I get asked a lot of questions about something I am about to say, and the answer is I have got the answer for your Honour and I was about to give it.

KIRBY J: I cannot wait.

MR ODGERS: Can I just say that in respect of the amended grounds 1 and 2, they are essentially the same as the original two grounds, with a very slight grammatical change in them. In response to your Honour Justice Kirby, we submit that it is not fatal to the appeal if leave is not granted to amend. The original grounds, which are essentially as the first two grounds of the document I have just handed to your Honours – the first one submitted that the Court of Criminal Appeal failed on the face of it to make a decision as to whether or not the trial judge properly applied the test for determining whether to admit certain evidence as tendency evidence and coincidence evidence. Ground 2 is in the alternative, that on the assumption that the Court did decide that, the court erred in deciding that the trial judge properly applied the test for determining to admit the evidence as tendency evidence and coincidence evidence.

However, the point I have to concede is that if we succeeded on those two grounds, we have to concede that that would not justify quashing the convictions. It would, however, we submit, justify remitting the matter to the Court of Criminal Appeal to determine two questions: first, whether a miscarriage of justice was caused by reason of the trial judge erring in the exercise of his discretion as to whether or not to sever the counts on the indictment; secondly, to consider whether the trial judge erred in directing the jury that the evidence in question could be used as tendency evidence and coincidence evidence.

HAYNE J: Those are points which can be agitated in the Court of Appeal on remitter if, but only if, the notice of appeal to the Court of Appeal is first amended, and you would need leave in the Court of Appeal to do so?

MR ODGERS: Yes, that is correct, your Honour.

KIRBY J: Can it be said that your original grounds of appeal in the Court of Criminal Appeal do not go so far as to allow the matters that you have last agitated to be agitated there on remitter?

MR ODGERS: The ground was that a miscarriage of justice was caused by the trial judge’s error, and it would have been our contention if - - -

KIRBY J: Where are the grounds of appeal again?

MR ODGERS: In the Court of Criminal Appeal?

KIRBY J: Yes.

MR ODGERS: There is just one ground - - -

GUMMOW J: Page 924.

MR ODGERS: Page 924, and the essence of our argument, as is now clarified today, is that a miscarriage of justice was caused for the purposes of section 6 of the Criminal Appeal Act by reason of the trial judge’s discretionary determination as to whether or not to sever, having miscarried, because applying House v The King principles, he had acted on the wrong principle.

KIRBY J: The argument to the contrary would be that the ground of appeal has narrowed the miscarriage of justice of which you were complaining to the Court of Criminal Appeal by the words “in that” and then assigned a particular miscarriage which is complained of which is not as large as the one which you would be seeking to remit, but I suppose if this Court remits it under its powers under the Judiciary Act and arguably under the Constitution, then it is within the jurisdiction of the Court of Criminal Appeal, the matter having been made clear here, which was not noticed by the Crown or the Court of Criminal Appeal itself?

MR ODGERS: Yes, that would be our submission.

KIRBY J: But why should we do that, given that you did not raise this earlier? Why should we, as it were, correct something that nobody else has noticed until this day?

MR ODGERS: Your Honour, the problem seems to be - - -

KIRBY J: Especially, can I add, especially if one took the view that the decision of the Court of Criminal Appeal was essentially right in the legal conclusion they arrived at, and that the facts are so unmeritorious in this case that no miscarriage of justice has occurred.

MR ODGERS: I accept that if that is the view of the Court, then it would not be appropriate to remit, but I accept that if this Court concludes that the trial judge did not make an error, then that is the end of the appeal. Even if the Court accepted our arguments that the trial judge did apply the wrong test, then there would be a separate question as to whether or not this Court decided not to remit on the basis that it could not be concluded that it had resulted in a miscarriage of justice, and therefore it would not be appropriate to remit to the Court of Criminal Appeal to consider that question.

Your Honours, relatively briefly, can I just take your Honours to a very small number of judgments of this Court, which I submit - - -

HAYNE J: To demonstrate what?

MR ODGERS: To demonstrate that it is a proper approach to do what we contend should be done, that is to give guidance of the sort that the High Court gave in Pfennig for the common law in respect of section 101 of the Evidence Act. If I could begin with Papakosmas itself[1999] HCA 37; , 196 CLR 297, and I will only take your Honours to just the judgment of Justice McHugh in that judgment at page 327. In paragraph 96 his Honour referred to the argument that the discretion in 136 should be used to override the statutory exceptions to the hearsay rule created under the Act and your Honour proceeded by saying:

The principles relating to statutory discretions have been articulated on many occasions.

And you cited Hyman v Rose. And then, in paragraph 97:

Sections 135, 136 and 137 contain powers which are to be applied on a case by case basis because of considerations peculiar to the evidence in the particular case. It may be proper for appellate courts to develop guidelines for exercising the powers conferred by these sections so that certain classes of evidence are usually excluded or limited -

and your Honour cited Norbis v Norbis.

But those sections confer no authority to emasculate provisions in the Act to make them conform with common law notions of relevance or admissibility.

We say that what we are contending before the Court today is to do what your Honour described as “proper” for appellate courts. Can I take your Honours to Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518. Their Honours Justice Mason and Justice Deane after quoting from House v The King proceeded to say on 518:

The sense in which the terms “discretion” and “principle” are used in these remarks needs some explanation. “Discretion” signifies a number of different legal concepts: see, e.g., the discussion in Pattenden . . . Here the order is discretionary because it depends on the application of a very general standard – what is “just and equitable” – which calls for an overall assessment in the light of the factors mentioned in s.79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application - - -

GUMMOW J: I do not necessarily agree with that expression “judicial discretion” used there.

MR ODGERS: I cannot argue with your Honour. The term “discretion” is a term that has different meanings in different contexts, and I would not presume to tell your Honours what it means. The reason I have cited that passage is to draw a distinction between discretions in respect of which different outcomes may equally be correct, to use the language of their Honours, and application of principles where, on page 520, for example, their Honours said in the middle of the page:

The reference to “wrong principle” in the passage quoted from House v The King no doubt refers to a binding rule rather than a guideline in the sense already explained.

A principle may be something which is a rule in respect of which there is really only one correct outcome, but more importantly, your Honours, on 519 their Honours discussed the legitimacy of appellate courts providing guidance as to the application of statutory discretions. At the third line on 519:

It has sometimes been said by judges of high authority that a broad discretion left largely unfettered by Parliament cannot be fettered by the judicial enunciation of guidance in the form of binding rules governing the manner in which the discretion is to be exercised . . . However, it does not follow that, because a discretion is expressed in general terms, Parliament intended that the courts should refrain from developing rules or guidelines affecting its exercise . . . The proposition referred to at the beginning of this paragraph should not be seen as inhibiting an appellant court from giving guidance, which falls short of constituting a binding rule, as to the manner in which the discretion should be exercised . . . And despite the generality of some of the statements to which we have referred, there may well be situations in which an appellate court will be justified in giving such guidance the force of a binding rule by treating a failure to observe it as constituting grounds for a finding that the discretion has miscarried.

The point of preserving the width of the discretion which Parliament has created is that it maximizes the possibility of doing justice in every case. But the need for consistency in judicial adjudication, which is the antithesis of arbitrary and capricious decision-making, provides an important countervailing consideration supporting the giving of guidance by appellate courts, whether in the form of principles or guidelines.

I would like to stress, your Honours, that we are not in the field of a discretion in section 101. It is not a discretion, as the courts have made clear on many occasions. It is intended to be a principle, a proposition of law. While it is expressed as a balancing test, it is not proper to regard it as a discretion. If the balance falls in favour of a conclusion that the probative value is not substantially outweighed by the prejudicial effect, the evidence must be excluded, unless it is relevant in some other way, of course. I would submit that what is said by their Honours in Norbis v Norbis must be read a fortiori in the context of section 101.

I only want to take your Honours to two other cases. The first is Pfennig, just to two pages in that judgment at 182 CLR 482 in the judgment of the Chief Justice, Justices Deane and Dawson. At the bottom of the page, their Honours said:

Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here “rational” must be taken to mean “reasonable” and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.

Over the page, your Honours, at page 485 their Honours repeated the same point in that middle paragraph:

Once that criterion of admissibility is accepted, it is apparent that the trial judge is required to discharge an important responsibility. That point was made by the Supreme Court of Canada in Reg. v. B. where it was accepted that the process of balancing the probative value of the evidence against its prejudicial effect was a delicate one. But the trial judge, in making that judgment, must recognize that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence.

Lastly, if I can take you in terms of authorities to Hoch itself which, of course, predated - - -

KIRBY J: I just ask you, there was nothing in the Minister’s second reading speech for the Evidence Act that referred to this matter?

MR ODGERS: Your Honour, no - - -

KIRBY J: We have the explanatory memorandum, but there is nothing in respect - - -

MR ODGERS: No, nothing that I am aware of. If I could go to Hoch which, of course, was decided in 1988 and was referred to in the explanatory memorandum to the Bill in 1993. I will not take your Honours to the majority judgment, where their Honours essentially postulated the “no rational view” test, which was then endorsed in Pfennig. Your Honours will find that in the majority judgment on page 294 and also 296. It is rather that I rely on what the other two judges said at page 300. At the bottom of that page, Justices Brennan and Dawson said, five lines from the bottom:

The criterion of admissibility of similar fact evidence is that its probative force clearly transcends its merely prejudicial effect –

their Honours cited Perry and Sutton –

and if there is a real chance that the evidence is a concoction born of a conspiracy –

Can I just stop there for a moment. In Hoch, the similar fact evidence problem was that there was a possibility of joint concoction. That was a rational view of the evidence inconsistent with guilt, therefore the court held that it was inadmissible. When their Honours are saying:

if there is a real chance that the evidence is a concoction born of a conspiracy –

they are applying this test of “if there is a rational view consistent with innocence” –

the trial judge can hardly be satisfied that it possesses the probative force which alone warrants its admission.

Then their Honours went on in the next paragraph to emphasise that this is really an application of the balancing test. They reinforce that point on page 302, in the middle of the page, when they said that:

If there is a real danger of the concoction of similar fact evidence it is consistent with the attitude which the law adopts –

and I am referring here to what your Honour Justice McHugh said about judicial experience –

toward evidence of that kind that it should exclude it upon the basis that its probative value is depreciated to an extent that a jury may be tempted to act upon prejudice rather than proof.

So, a fortiori, if there is a rational view of it consistent with innocence, it should be excluded on the basis that the probative value is not sufficiently high to conclude that it should be admitted notwithstanding the danger of an unfair trial.

GUMMOW J: The passage I had in mind from Norbis v Norbis is from Justice Brennan at 537 beginning at line 3. That certainly must be true of a provision such as section 101(2) in the words “substantially outweighs”.

MR ODGERS: Yes, that is really the nub of the issue it seems, but I stress that it is not correct to see 101 as a discretion. It should be seen as the articulation of a principle intended to be the same principle as at common law, and in those- - -

McHUGH J: Well, what do you say about the fact that the dictionary defines “probative value” as meaning the extent to which the evidence, and that must be the evidence in the particular case, could rationally affect the assessment of the probability of the existence of a fact in issue? Does that not indicate that the section is dealing with the particulars of the case? It is not dealing with a class or category of evidence.

MR ODGERS: I can only say, your Honour, that that is a definition of “probative value” which is no different from the view of what probative value is at common law.

McHUGH J: Well, that is true, but the common law laid down a general principle, but here we have a statute and we have to construe the statute and - - -

MR ODGERS: Yes. Can I say this to your Honour in response, that even when you are applying the common law that the Court is required to make a judgment as to whether the evidence is sufficiently probative. Maybe this is not an answer to what your Honour puts, but the Court is required - if you apply the Pfennig test, is given guidance. I use that language to assist in determining whether or not the evidence has sufficient probative force given the definition to justify admission. I think your Honour is putting to me the problem that I have to face, that if you transpose the definition into it, then that requires a court to actually engage in an assessment of probative value - - -

McHUGH J: Yes, that is what I am putting to you, as to what your submission is in respect to it.

MR ODGERS: I am not sure I have an immediate answer, your Honour.

GLEESON CJ: A problem that intermediate appellate courts, as I understand it, have had in applying the majority view in Pfennig arises from what is said at the top of 483 in 182 CLR.

MR ODGERS: Top of 483?

GLEESON CJ: Yes. Where the trial judge, it is said, in lines 3 and 4, should:

ask whether there is a rational view of the evidence –

that is to say, that propensity evidence –

that is consistent with the innocence of the accused.

The problem that intermediate appellate courts have had in applying that is that you normally have to look at the whole of the evidence in the case, rather than just look at the propensity evidence alone. Is it your submission that what the majority mean there is that the rational view of the evidence in question is the rational view of the propensity evidence considered together with the rest of the evidence?

MR ODGERS: Yes, considered in the context of, perhaps, is a better way of putting it, in the light of the other evidence in the case.

GLEESON CJ: But you never know what the other evidence in the case is going to be.

MR ODGERS: That can be a practical problem, but - - -

GLEESON CJ: You do not, for example, know whether the accused is going to give evidence.

McHUGH J: And is not the fact that in the cases where this Court has laid down this general principle, it really has confined itself to the propensity or tendency evidence. In a case like Hoch, they do not seem to look at anything else except the question of collusion between the boys, which seemed to be based on the fact that there was some antipathy, if I remember rightly.

MR ODGERS: But, your Honour, that is an application of the Pfennig test. It is similar fact evidence.

McHUGH J: Yes, I understand that, but in practice the courts themselves just seem – or this Court, when it has examined the evidence in accordance with its test, seems to just concentrate on whether there could be an innocent explanation of the similar fact evidence.

MR ODGERS: Yes. I appreciate that the Chief Justice is putting to me that to make that judgment in context can be difficult if you do not know what all the evidence is, but in Pfennig itself, the Court – of course, it is ex post facto, it is looking backwards at what happened at the trial – engaged in an assessment of whether or not there was a rational view of the evidence that Pfennig, a year later, abducted another child – whether there was a rational view of that evidence consistent with his innocence of the murder of the victim in this case. In order to determine that question, the Court considered the prosecution case as to, for example, the fact that he was the last person, essentially, to have seen the victim alive. That was factored into the equation to answer the question as to whether or not there was a rational view of the propensity evidence consistent with innocence of the murder of the child.

GLEESON CJ: On the bottom of 483, in the last two sentences, the majority seem to say that what we now find as the statutory test is a useless test.

MR ODGERS: That is correct, your Honour, but it is of little assistance. That repeats the point I made to your Honours early before lunch.

GUMMOW J: You have taken us to 101, but does not the phrase “probative value” in 101(2) have to be read with 97 and 98 and therefore postulate significance?

MR ODGERS: Your Honour, you do not get to consider 101 unless it has got through the 97 and 98 gates - - -

GUMMOW J: Exactly.

MR ODGERS: That is true, but, with respect, whatever the answer is to the question before the Court today as to the proper interpretation of 101, it still has to have significant probative value. The question is, when you are considering 101, you have already concluded it has significant probative value. Now you are saying it is a criminal case, it has been led by the prosecution, it reveals that he is engaged in other criminal acts. Do you do what the trial judge did here and say, “I am satisfied that the probative value substantially outweighs prejudicial effect”, and use a recitation of the statutory formulation, applying a test which the majority in Pfennig says provides “little assistance”? Or do you do what we contend the judge should do and ask the question whether there is a rational view of the evidence consistent with innocence?

GLEESON CJ: Well, if it did not have probative value, it would fall at the very first hurdle.

MR ODGERS: It would not be relevant.

GLEESON CJ: It would not be relevant.

MR ODGERS: Correct, and that if it was not significant probative value it would fall at the 97, 98 hurdle. So it has to get through those hurdles. The question is, what is the nature of the final hurdle, so to speak, and how protective is it of accused persons? How clear is it? How certain is it? How well does it ensure that it is a principle and not a discretion?

HAYNE J: The interesting thing is the one thing you do not mention, Mr Odgers, namely what does it mean? That is the one thing you do not mention in that recitation. What do the words mean?

MR ODGERS: Which ones, your Honour?

HAYNE J: Section 101.

MR ODGERS: I am trying - - -

HAYNE J: Trying to avoid the problem, yes.

MR ODGERS: I call in aid the proposition that they really do not mean much and that is the reason why - - -

HAYNE J: Not too many Acts of Parliament are void for uncertainty, Mr Odgers. We have to deal with them and make them mean something.

MR ODGERS: I have also called in aid what Justice McHugh said in Pfennig that you are trying to balance incommensurables and that, therefore, it should be seen as a formulation reflecting a particular principle, but I have made that point, I think, more than once.

McHUGH J: Well, one rationale of the majority judgment in Pfennig and what was said in Sutton and by Justice Murphy earlier in Perry is that this is circumstantial evidence of a particular kind and it must meet, at the admissibility threshold, the same sort of test that was formulated in Chamberlain. It has to be proven or the jury must be satisfied beyond reasonable doubt, and the judge must be satisfied beyond reasonable doubt of it.

MR ODGERS: Your Honour, that is precisely the origin of the Pfennig test because that is precisely what Justice Dawson said in Sutton. I will not take your Honours to it but - - -

GLEESON CJ: Was Sutton decided before Shepherd?

MR ODGERS: It was decided – I think it was handed down the day after Chamberlain.

GLEESON CJ: The High Court went into vigorous retreat from Chamberlain in Shepherd because the basic fallacy of the idea that was around for a while after Chamberlain arose out of the fact that the jury have to consider the totality of the evidence.

MR ODGERS: Yes, but there are circumstances where the evidence is so important, of course, that it is indispensable to proof of guilt and where it is appropriate to apply that test, but I understand what your Honour puts to me. But just returning to Justice McHugh there is no doubt that within Australia the origin of the Pfennig test seems to have come from what Justice Dawson said in Sutton.

McHUGH J: Not quite, is it, because Justice Murphy said something very similar in Perry.

MR ODGERS: That may be correct, your Honour, and perhaps it does not matter. I will not take your Honours to those passages and even when you go back before then, of course, back to Boardman, your Honours will see that it was really expressed in Boardman. Can I just refer your Honours back to Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 478, an extract from what Lord Cross of Chelsea said in the second cited quote:

“The question must always be whether the similar fact evidence taken together with the other evidence would do no more than raise or strengthen a suspicion that the accused committed the offence with which he is charged or would point so strongly to his guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in face of it.

That really is a very similar approach to the one that ultimately was adopted by the Court in Hoch and in Pfennig.

Your Honours, just two more quick points. I really want to draw your attention to the written submissions. At paragraph 5.27 of our written submissions, we have attempted to deal with the points that Chief Justice Spigelman made about indications in the Evidence Act that the Parliament intended to lay down a set of principles to cover the relevant field to the exclusion of the common law principles. I will not read out what is in paragraph 5.27. I just emphasise the final point, which is at the bottom of the page, that we accept that there was an intention to cover the field in respect of tendency and coincidence evidence. All that means is that any common law rule inconsistent with the Act would have no effect, section 9 of the Act. But that is a different thing, we say, to saying that the application of one of the provisions may not be guided by common law authorities, and that is the argument we have advanced.

The last matter – at this stage, anyway – is at paragraph 5.28, and this particularly relates to your Honour Justice Gummow’s point about the word “substantially”. That was a very important part of Chief Justice Spigelman’s reasoning to a conclusion that the Act was intended to exclude the common law principles. In paragraph 5.28, we have put five arguments as to why that conclusion should not be accepted, including a reference to the meaning of the word “substantial” in the Macquarie Dictionary.

We say that, properly understood, the formulation in 101 is no different from such formulations as the one that Justice Brennan, as he then was, used in a number of decisions in this Court about the requirement that the probative value clearly transcend prejudicial effect. It is a somewhat cheap debating point, but I notice that our friends, in their final written submissions, talked about the probative value clearly outweighing the prejudicial effect. They have adopted a similar kind of formulation as being essentially analogous to the terms of 101, and we say that is simply commonsense and correct.

Your Honours, my final submissions are these. I know to a significant extent they repeat what I have said before, but I will just summarise them. We say that only if a court applies the “no rational view” test under section 101 to evidence to which that test would apply at common law can one safely conclude that the balance justifies admission of this very dangerous evidence. Only when you do that can you ensure that the question of admissibility is governed by a principle and not a discretion. Only when you apply that test can you ensure certainty and consistency, as Justices Mason and Deane said in Norbis, one of the goals of providing guidelines of this sort.

Lastly, only by doing that will you encourage careful analysis by trial judges rather than the danger of a mere recitation of the statutory formula, as we say happened in this very case, because the trial judge in this very case simply said, “Well, I’m satisfied probative value substantially outweighs prejudicial effect”, without any careful analysis of just what was the probative value in the particular circumstances, although I also quickly concede that it could be said against that argument that at least on the statutory formula you are required to assess prejudicial effect, and that is not something you do when you apply the “no rational view” test because you assume that it is going to be prejudicial and you apply a particular threshold level of probative force. That is really justified, I say, by what I put before.

GLEESON CJ: Mr Odgers, on the assumption that we were not minded to give you leave to amend your notice of appeal, is there anything further that you would wish to say as to why we should not rescind special leave to appeal in that event?

MR ODGERS: I submit that it is not appropriate for the reasons I gave Justice Kirby that the appropriate order of the Court would be to, nonetheless, allow the appeal and remit - - -

KIRBY J: But that is very much wrapped up in the question of whether there is a miscarriage of justice and you have studiously avoided reference to the evidence in which there is a powerful and, in one view, a view that is only consistent with a rational approach to the facts of the case that implicates your client in the series of crimes of such marked identity and if you come to that view then there is no miscarriage of justice and that is the end of the matter.

MR ODGERS: If this Court took the view that on any view of it it could not be concluded that there was a miscarriage of justice, that is that there
was no substantial miscarriage of justice because it did not lose a chance at acquittal, the proviso test, then it would not be appropriate to remit it to the Court of Criminal Appeal even if I persuaded your Honours that there had been an error made both by the trial judge and the Court of Criminal Appeal. So my argument has to be that your Honours would not revoke special leave. Rather the next step in the process would be to investigate whether or not it is a case where one would apply the proviso and if the conclusion were reached that it would not apply the proviso in respect of all 11 counts, then it would be appropriate to not rescind special leave and to remit and to determine the legal question raised and if we are successful to remit the matter to the Court of Criminal Appeal to determine whether or not there has been a miscarriage of justice.

GLEESON CJ: Thank you. We will adjourn for a short time to consider the course we will take.

AT 2.56 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.03 PM:

GLEESON CJ: We do not need to hear you further, Mr Smith.

MR SMITH: If the Court please.

GLEESON CJ: The appellant appealed to the Court of Criminal Appeal of New South Wales and later appealed to this Court on what, in effect, was a single ground, that the evidence of the commission of the several offences of breaking, entering and stealing with which the appellant was charged was not admissible at his trial.

That particular question must be determined against the appellant. Evidence of the commission of the offences with which he was charged was, of course, admissible at the trial of the charges in the indictment on which he was arraigned.

The complaints the appellant now seeks to make concern the decision of the trial judge not to sever the counts in the indictment beyond the severance of two charges not now in issue and the directions given to the jury at the trial. Both of those complaints raise issues that have not been raised before or considered in the courts below.

Counsel for the appellant, acknowledging the difficulty of sustaining the present grounds of appeal, sought leave to amend his notice of appeal by adding the following three grounds:

1. The Court of Criminal Appeal erred in failing to hold that a miscarriage of justice resulted from the trial judge holding that certain evidence could be admitted as tendency and coincidence evidence;

2. A miscarriage of justice resulted from the trial judge erring in the exercise of his discretion in deciding an application to sever the counts in the indictment;

3. The trial judge erred in directing the jury that certain evidence could be used as tendency evidence and coincidence evidence.

If leave had been granted, those grounds would have been added as grounds 3, 4 and 5 to the notice of appeal, as amended.

In the course of making his application to amend, counsel was given the opportunity of advancing any arguments he wished to make concerning the decision of the Court of Criminal Appeal on the construction of the Evidence Act 1995 (NSW).

The application for leave to amend the notice of appeal is refused. The proposed new grounds seek to raise issues that were never dealt with, either at trial or in the Court of Criminal Appeal. Special leave to appeal from the decision of the Court of Criminal Appeal is rescinded. Upon further examination, it appears that there were insufficient prospects of success of an appeal to warrant a grant of special leave. We would add that we agree with the decision of Chief Justice Spigelman on the construction of the Evidence Act 1995 (NSW).

We will adjourn until 10.15 tomorrow.

AT 3.06 PM THE MATTER WAS CONCLUDED