IMM v The Queen [2016] HCATrans 8 (3 February 2016)

Last Updated: 3 February 2016

[2016] HCATrans 008

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D12 of 2015

B e t w e e n -

IMM

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 FEBRUARY 2016, AT 10.19 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, MS K.J. EDWARDS. (instructed by Northern Territory Legal Aid Commission)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.W. NATHAN, SC, for the respondent. (instructed by Director of Public Prosecutions (NT))

FRENCH CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, an outline has been provided - if your Honours might have an opportunity to look at that.

FRENCH CJ: Just take a seat for a moment, Mr Odgers. We will have a look at that. Yes, thank you, Mr Odgers.

MR ODGERS: Your Honours will see from the outline that I propose to do a brief outline of the operation of the Evidence (National Uniform Legislation) Act (NT) which is very largely uniform with a number of other jurisdictions. I am sure a lot of what I say, hopefully, will be – I will keep it brief, and it may be your Honours are fully familiar with it, but it may be useful just to do that brief outline.

As your Honours no doubt appreciate, Chapter 3 deals with the admissibility of evidence. Sections 97 and 137 both fall within Chapter 3. The first key provision in Chapter 3 is section 56, which provides that:

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

and evidence that is relevant is to be admitted except as otherwise provided in the Act. Section 55 defines “relevant evidence”. Your Honours have seen the definition, and it is contained in the outline under point 2. As your Honours appreciate, it is a very broad test which essentially requires a court to conclude that evidence is relevant if it is capable of affecting the probabilities even minimally, and in contrast with probative value which, as your Honours appreciate, requires a judgment of what extent it can affect the assessment of the probabilities.

FRENCH CJ: The words “if it were accepted” play a part in the argument?

MR ODGERS: Of course. Now, there are a number of exclusionary rules within Chapter 3. An example we have given initially is 59, which is the hearsay rule. That provides that an out-of-court statement relied on to prove the truth of what was asserted is to be excluded, and then there are a whole series of exceptions to that.

Some of the exceptions – and we have given a couple of examples – 66A, of course, is one and it may be that I will come back to that later in the argument but that relates to criminal proceedings where a person who made the out-of-court statement is to be a witness in the proceeding and the test for overriding the hearsay rule in that context is whether or not when the statement was made, the event was fresh in the memory of that person.

Section 65 creates other exceptions in criminal proceedings for firsthand hearsay and, as your Honours appreciate, 65(2) contains a number of those exceptions. And it is relevant, we say, that factors that are to be taken into account by the Court bear on questions of both reliability and, to some extent, truthfulness in the application of those exceptions.

Another rule – exclusionary rule – in the Act is the tendency rule contained in 97 and, your Honours, if I could just go to that briefly. What that provision says – your Honours can read subsection (1) but:

Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency . . . to act in a particular way –

So, it is a rule focusing on a particular process of reasoning and there is no dispute in this case that the evidence relating from the complainant regarding what she says her father had done in the massage incident in running his hand up her leg fell within the scope of 97. The evidence is not admissible unless – in this case the prosecution – paragraph (b) satisfies the Court that:

the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

There is essentially an identical test for the admissibility of coincidence evidence in 98. I will not take you to that, and I should say, 97 and 98 apply generally to any proceeding, both civil and criminal and applies to defence evidence in a criminal proceeding and certainly applies to the evidence in this proceeding.

Then of course 101 imposes further constraints on both tendency and coincidence evidence where relied on where adduced by the prosecution. It was not argued in the Court of Criminal Appeal that the evidence of the tendency was inadmissible by reason of 101, so I will not be taking you to that. The focus will be on the operation of 97.

Other provisions that should be noted are 95 which has the effect that even if evidence that discloses tendency is admitted for some other purpose, for example to go to let us say credibility, that will not prevent the operation of what I will call the exclusionary rule but it is not operating to exclude it. What it is operating to do, in this context, is to prevent tendency reasoning.

I mentioned 101, so 135 is, as your Honours appreciate, a whole series of exclusionary rules with exceptions and then at the end of Chapter 3, in Part 3.11 there are what are called discretionary and mandatory exclusions. Section 135 is a provision which applies in all proceedings requiring the court to balance probative value and other – and certain dangers. That was not relied on in this case.

Section 136 is a discretion to limit the use that may be made of evidence so that where evidence is otherwise admissible for a particular use is relevant for that use and is not excluded by an exclusionary rule from being used in that way then 136 permits the court to effectively prohibit that use.

Finally, in this context, 137 which is only in criminal proceeding and applies only to evidence adduced by the prosecution and it states that the court must - it may be that that is going to be something that is going to be referred to later in the argument in contrast with the word “may” in 135 and 136 but:

must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

That is a brief summary of the structure of Chapter 3. Of course, there are other provisions that may be relevant, warning provisions in 165, but I will not take you to those. My friend may take you to them.

In the outline we have referred to various terms used in the Act. The ones that we have listed there are defined in the dictionary to the Act. I am sorry - “probative value” is defined in the dictionary and “credibility of a witness” is defined in the dictionary; “relevant evidence” of course is effectively defined in section 55(1).

I will not say any more about those at this stage, other than perhaps to note that “credibility of a witness” is used in a sense which is very broad and it is understood that it includes questions going to the reliability of a witness, as distinct from simply questions going to truthfulness. That may or may not be relevant to the ultimate issues before this Court.

In terms of terminology that I use, I am going to try to be consistent. I think it is important to try to be consistent about terminology because different people use the same term in different ways, so I am going to try to use these terms in the ways as defined. So “weight” is defined there by me to mean:

the extent to which the evidence affects the assessment by the tribunal of fact of the probability of the existence of a fact in issue (taking into account all material matters -

and it would be a material matter that there is some aspect of a circumstance going to the reliability of the witness, let us say, who was testifying and giving the evidence – that would be a material matter which would bear on the assessment of the weight to be given to that evidence by the tribunal of fact.

FRENCH CJ: That is when all the evidence is in?

MR ODGERS: Yes, at the end of the process when the tribunal of fact is determining the case and considering the evidence that the tribunal will necessarily assess the weight to be given to items of evidence and that will be the task that it performs. You will notice what I have done is formulate it in a way which correlates to the definition of “probative value” that also assists in differentiating between the two concepts, because “weight” is not expressed in terms of what could happen or what could rationally happen. It is expressed in terms of the assessment by the tribunal of fact as to what the effect is in the view of the tribunal of fact of the impact on probabilities. “Reliability” is defined by me as:

the extent to which reliance may be placed on the evidence when determining its weight (taking into account all material matters –

and a material matter may well be circumstances going to the truthfulness or otherwise of the person giving the evidence.

After we had done the outline I thought of another term which might come up, which it probably would be helpful for me to say something about, and that is the term “taking evidence at its highest”. That is a term that was used a lot in the common law and it has been used to some extent – it is a phrase, I am sorry, not term – that comes up in this context as well.

When I use it I hope to be consistently using it in the sense of simply a reflection of the proposition that the definition of “probative value”, which is extracted at the top of the outline, requires the court to assess the rational capacity of the evidence to affect the assessment of the probability of the existence of a fact in issue.

As a practical matter, when a court is doing that in circumstances under like section 97 or 137 that will require the court to assess that probative value at the highest level of that capacity because it is being asked to consider whether the probative value is significant in terms of 97 or whether it is outweighed by certain dangers under 137 and therefore, as a practical matter, if there is a range of capacity from very low capacity to high capacity, the court will assess it at the highest level of rational capacity.

FRENCH CJ: I am not sure what that means. Does that mean anything more than assuming the evidence to be true?

MR ODGERS: No, it does not. What it does not mean is that. It does not assume it to be true. It means that - - -

FRENCH CJ: Assuming for the sake of argument it is true – not accepting that it is – you assume it is true and then you look at its rational effects.

MR ODGERS: I think that is one of the issues before the Court.

FRENCH CJ: I am just looking at the way you are using the terminology “taking evidence at its highest”.

MR ODGERS: Yes. You are asked to assess capacity and the capacity is premised on an assessment by a rational fact finder. The question that is being asked, we say, in terms of probative value, is what is the highest level of impact – using the language of rationally affect the assessment of the probability of the existence of a fact in issue - what is the highest level of impact in that sense that the evidence could rationally have? That is what the words, we say, of the definition of “probative value” require. When I use the term “taking evidence at its highest” it is simply a reflection of that proposition – the application of the definition; the words in the definition as they appear in the definition, without anything added to those words. I am sure this will become clearer as the argument proceeds.

If I could just take your Honours briefly through the actual rulings. No doubt your Honours have looked at this, but I will just take your Honours briefly to the material. At appeal book 2 at 696, this was the ruling in respect of the uncharged acts evidence. Your Honours will appreciate that there was a great deal of generalised uncharged act evidence and the judge ruled that it was not admissible for tendency reasoning, that it did not meet the 97 test, and the jury were directed that they could only use it as “context”.

The other item of evidence was a specific piece of evidence where the complainant alleged that I think roughly six months after the last charged act there was an incident during a massage where she asserted that the appellant had touched her leg or run his hand up her leg. The judge dealt with the generalised statements at 700 to 702 and then she came at 704 to the ruling in respect of the specific evidence relating to the running his hand up the complainant’s leg. This is paragraph 10 at the top of 704:

In my view the evidence . . . does possess the quality “significant probative value” required by s 97 -

Then the key words, which we say disclose error -

This is on the assumption that I am required to make that the jury accept the evidence.

Her Honour then distinguished this from the generalised statements and she says:

If accepted, is capable of demonstrating an inappropriate sexual interest –

by the accused in the complainant. We do not really take issue with that proposition, if accepted but - sorry, we take issue with beginning with that premise and so that is really the ruling that her Honour made in respect of the tendency evidence.

In respect of the complaint evidence, and your Honours appreciate there were a number of complaints, I think there were complaints to five different people - I will not take your Honours to the evidence at this stage certainly, and may not at all, but there are complaints to the grandmother and the aunty on a particular day. Then the complaints to the mother the following day and also complaint made to a friend, SS, and there was an issue in the trial about when that took place.

The ruling on the complaint evidence is - go to page 679 of the appeal book - and this evidence was challenged on a number of bases. It was challenged on the basis it was not relevant. It was challenged on the basis it was hearsay. It was sought to be excluded under 137. For the purposes of this appeal, the focus is on 137 but there are aspects of her Honour’s analysis which are relevant in this context.

In particular, when she was assessing the question of relevance, she acknowledged that there were various factors present which raised questions about the reliability of the complaint evidence and your Honours appreciate that we have drawn attention to some of those factors - the timing of the complaints, the circumstances in relation to which she complained to her grandmother and aunty and the leading nature of some of the questioning. These are all aspects that her Honour referred to but concluded that the evidence was relevant and we are not taking issue with that in these proceedings and we did not in the Court of Criminal Appeal, I should add.

But then it came to the application of 137. She dealt with the hearsay exception at page 688 and over to 689. I am not sure that it is particularly relevant but it seems that her Honour differentiated between the complaint made to the mother and the complaint made to SS on the one hand, which her Honour applied section 66 to, in the sense that it overrode the hearsay rule but she did not apply it in respect of the complaints made to the aunt and the grandmother and she allowed that in only as context for the complaint made to the mother.

I do not think that is going to be relevantly significant in the determination of this appeal but I just noted that that was the effect of her ruling at 689 and also 692 but turning to the key aspect of the appeal, her ruling in respect of discretionary exclusion at page 689 - - -

FRENCH CJ: You would call that “mandatory exclusion”?

MR ODGERS: I was just going to say, your Honour – I am referring to her Honour’s language but, of course, the Act talks in terms of mandatory. I know this is going to come up later so I might as well say it now. We say that there is really no difference between you may exclude it if the probative value is outweighed by unfair prejudice, because it is essentially inconceivable to imagine any circumstances in which you would not exclude it. The use of the word “must” is really a statutory recognition of that reality, that if probative value is outweighed by dangers of unfair prejudice, you really have no choice, you have to exclude it. The change from “may” to “must”, we say, does not alter anything but, nonetheless, it is mandatory in that sense.

Putting that to one side, her Honour dealt with 137 at paragraph [40]. It was submitted that the evidence should be excluded under that. At the top of 690, her Honour noted that there are matters going to weight which the jury will need to consider. Those are the matters I referred to earlier; the matters that she discussed to some extent under the assessment of relevance. Then, paragraph [28], she refers to “real risk”; the aspect of danger of unfair prejudice. We do not take issue with her formulation of those dangers. Then, paragraph [29] – and this is where we do take issue:

Further, the enactment of s 137, as with the common law Christie discretion, does not involve considerations of the reliability of the evidence when considering its “probative value”. The evidence is to be “taken at its highest” –

That is using that phrase in a somewhat different way to the way we do –

Even prior to the UEA, the term “probative value” included an assumption that the evidence would be accepted on the basis that the “evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted” –

That is a quotation from Justice Gaudron in Adam, and I will return to that in due course. Then her Honour said –

Although contrary views have been expressed as noted in Shamouil, the preponderance of authority favours a restrictive approach to the assessment of “probative value” –

Her Honour plainly applied that restrictive approach, which we understand to mean that she did not factor in considerations bearing on the reliability of the evidence when assessing probative value. Her Honour proceeded on the assumption that the evidence would be accepted in performing that task. We, again, take issue with that approach. We say that it is erroneous, and I will come to that in due course.

Now, the appeal in the Court of Criminal Appeal – it is true to say the judgment of the Court of Criminal Appeal does not clearly and unambiguously focus on these precise issues that we have articulated but, nonetheless, it is undoubtedly the case that it was argued and the Court of Criminal Appeal both in respect of the tendency evidence and the complaint evidence that it is erroneous to assess probative value on the assumption that the evidence will be accepted or that one disregards questions going to reliability. There were complications in that and various other arguments were advanced and that may explain why it is that the judgment of the Court of Criminal Appeal does not always clearly grasp the nettle, so to speak, in terms of the issues we raise in this Court.

But we say that it is clear that the Court of Criminal Appeal took a view relying on Shamouil that, in essence, it is appropriate to disregard considerations going to reliability and that it is, in essence, as Justice Gaudron said in Adam, that the assessment of probative value should proceed on the assumption that the evidence will be accepted.

In any event, we have extracted various parts of the judgment – the leading judgment of the Court of Criminal Appeal in the outline which deals both with the tendency evidence and the complaint evidence. The appeal was dismissed. We have sought to isolate the key issue in the way that we have that was before the trial judge and before the court there to allow the question of principle to be resolved. If I could, having had that introduction, turn to the key question - - -

FRENCH CJ: By the way, when you use this term “reliability”, just looking back at item 3 in your outline, you say:

extent to which reliance may be placed . . . (taking into account all material matters including the assessed truthfulness –

Now, does that mean some notion of the person is doing their best to tell the truth? It is not a notion of the accuracy of what they are saying?

MR ODGERS: When a tribunal of fact is assessing weight and, as part of that exercise, assessing the reliability of a witness, relevant considerations would include circumstances – take identification evidence as an example. If there were circumstances relating to the identification, it was a dark night, the observations were made from a long distance, never seen the person before, they would be factors which would bear on the reliability of a subsequent identification of an accused as the offender.

So that would be one aspect of reliability, but there would be another aspect of reliability, which must be the case with essentially every witness although it will very rarely be an issue with the vast majority of witnesses, that there is a question about truthfulness. If a view is taken that a witness is most likely untruthful then that would mean that the reliability of that evidence is significantly reduced and, therefore, the weight to be given to that evidence will be very significantly reduced. Is that answering your Honour the Chief Justice?

FRENCH CJ: Yes, I just wanted to understand how you were using the concept.

MR ODGERS: I hope I am using it consistently. So, the term “probative value”, of course, as we appreciate, is defined in the dictionary of the Act. It is the key term both in terms of 97 the requirement of “significant probative value” for tendency evidence and in section 137 where the Court is required to engage in what I will call a “balancing” of two concepts, one is probative value on the one hand and the other is danger of unfair prejudice on the other.

We say that one should, in applying both 97 and 137, import the definition in the dictionary and, of course, we rely on section 3 of the Act which states, in common with other uniform evidence law – other uniform legislation – that subsection (1):

Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary.

I am not sure that anybody suggests to the contrary but that is the operation of that provision. You import the definition into both 97 and 137. We say that the Court should, in construing the definition as it appears in those provisions, that the natural meaning should be given to the words of the definition and we have advanced an argument in the written submissions at paragraphs 6.14 to 6.16 where we have sought to elicit what we say is the natural – giving the words of the definition of their natural meaning.

In particular, we emphasise at 6.15 of our written submissions that in the context of, for example, 97, the court is – the judge applying it is asked to determine the capacity of the evidence, by itself or in the light of other prosecution evidence, to affect the proof of any of the charged offences because they will be the facts in issue in the proceedings and in requiring the extent of the capacity to be considered, the definition is premised on the assumption that evidence can vary in its capacity to affect the probability of the existence of a fact in issue and demands a determination of the extent of that capacity.

We say that the court is required by the definition to consider all matters that would rationally bear on such an assessment by the tribunal of fact. The court is required to consider how a rational tribunal of fact could assess the weight to be given to an item of evidence and we say it would be directly contrary to the natural meaning of the words to constrain the determination of that extent by requiring an assumption that the tribunal of fact will assess the evidence in a particular way, that is, requiring an assumption that the tribunal of fact will accept it, particularly in cases where there are reasons to question the reliability of the evidence.

So, we say the natural meaning of those words in the definition necessarily carries with it a requirement that all factors that rationally bear on the assessment of weight are to be taken into account in the assessment of probative value and that it would be wrong to exclude from consideration one or more of those considerations – one or more of those factors which do rationally bear or would rationally bear on the assessment of weight.

BELL J: Can I just take up one aspect of the argument in the context of the evidence about the massage incident? As I understand your argument, in assessing the probative value of that evidence the trial judge would look at and make some estimate of the assessment that might be made of credibility if, for example, the complainant had not given an account of the massage incident in her interview with the police where she made her allegations and that particular allegation had emerged at a later time. That might be something that would bear both on credibility and reliability.

So looking at those factors the court, in the exercise of the – the 97 exercise or the 137 exercise might assess the probative value as relatively low, whereas taking the other view, looking at the evidence tendered on behalf of the prosecution in terms of its capacity to support the prosecution case, one might put to one side those particular considerations about credibility and reliability.

Nonetheless, taking, if you like, a midway course, Mr Odgers, one might say the probative value of that evidence is not high, not because the court is making some judgment about whether the jury are going to think the complainant is credible, having seen her evidence and knowing all of the evidence in the case, but simply because there is a limitation on the capacity of the evidence to rationally affect the assessment of whether the offences were committed because the source of evidence about the massage incident rises no higher than the source of evidence about the facts in issue.

The distinction is between an acknowledgment that the court in the exercise of assessing probative value is assessing the evidence in terms of it making some assessment of whether the probative value of the evidence is high or low but not embarking on consideration of criticisms of it that might commend themselves to a jury or might not.

MR ODGERS: Well, I am very much in agreement with your Honour’s approach and indeed we had attempted, at paragraph 6.32 to 6.35, to rely on that very point that your Honour makes, that the reason we say the evidence from the complainant about tendency had low probative value was precisely because of the point your Honour made that the value could rise no higher than the source in the circumstances of a case where her credibility was the very issue that the jury had to determine, and it is on that basis that we say the evidence necessarily had low probative value or, more precisely, that a trial judge, applying the law properly, could conclude it had low probative value.

We do not rely on any argument that the judge, applying 97 correctly, would engage in assessments of reliability or credibility of the type your Honour has postulated. We do not say – I need to be clear about this – that a judge would be precluded from doing that, but we would say that that kind of investigation is unlikely to lead to any conclusion requiring exclusion of the evidence.

Perhaps the point that needs to be made is that we do not say that in assessing probative value a judge is required to look at considerations going to reliability or required to look at considerations going to credibility. What we say is that a judge is not constrained artificially to assume that the evidence will be accepted because that then leads to an outcome which we say is erroneous.

If you do not have that constraint and you ask the question, in respect of the evidence of the complainant relating to the tendency, does that evidence have the capacity to significantly affect the assessment of the probability that the accused committed the offences charged, which turned very much on an assessment of her credibility, the answer, we say, is a proper analysis would say no, it cannot, for the very reason your Honour articulated, and that is the argument we advance.

KIEFEL J: Before one gets to section 97(1), does not the evidence, like all other evidence, have to pass through the gateway of relevance in section 55?

MR ODGERS: Of course.

KIEFEL J: Is not the presumption of acceptance dealt with by section 55? The question there:

The evidence that is relevant . . . is evidence that, if it were accepted, could rationally affect - - -

MR ODGERS: Yes.

KIEFEL J: When one proceeds to section 97, you proceed upon the basis that it is evidence, if accepted, and the question then under section 97 is simply as to the extent of its probative value. But the question of acceptance is dealt with by section 55, is it not?

MR ODGERS: With respect, your Honour, we take a different view on that.

KIEFEL J: Why?

MR ODGERS: It is very convenient your Honour has raised that now because this is dealt with under the statutory context point. Our argument is directly to the contrary of that proposition your Honour has put to me. We say that the legislation clearly differentiates between an assessment of relevance and an assessment of probative value. When a court is determining whether or not evidence is relevant it is required to assume that the evidence will be accepted. That is because a deliberate decision is made that relevance is to be a relatively easy threshold to jump over. It makes relevance, in the vast majority of cases, a relatively easy test to satisfy.

KIEFEL J: But that is simply to acknowledge the difference between the judicial role and the finder of fact where they are separated.

MR ODGERS: Your Honour, I am reluctant to ascribe any particular purpose to the statutory formulation.

KIEFEL J: If we keep to the language of the statute, are you saying then that the test of relevance for the purpose of section 97 is other than section 55?

MR ODGERS: We say that it is not a test of relevance; it is a test of significant probative value as defined and - - -

KIEFEL J: But, as you say, that is quite distinct from relevance and it has to have passed through section 55.

MR ODGERS: Correct, and so we say that because of the way relevant evidence is defined, it will relatively easily pass through that requirement but then when it comes to 97 which is designed to impose a burden on the prosecution in respect of a certain category of evidence which is perceived to have inherent potential problems at a particular, a new hurdle id created and that is a new hurdle, which has two aspects to it.

It has a requirement of an assessment of probative value as defined and as the Chief Justice pointed out to me, we place quite a lot of weight on the fact that the words “if it were accepted” are not found in the definition of “probative value” in contrast with the definition of “relevant evidence”, and so it requires an assessment of probative value as defined, which does not include those words, and it requires that the probative value be assessed to be significant.

FRENCH CJ: It may not include those words because it assumes their existence on the basis of the evidence, as Justice Kiefel has put to you, has passed through the gateway of relevance.

MR ODGERS: I am trying to grapple with that proposition. I can only repeat that what the statue does - - -

FRENCH CJ: It picks up precisely the language, does it not, of the second limb of the definition of “relevance” in 55 and then adds the words “to the extent to which”?

MR ODGERS: Adds those words and deletes the words “if it were accepted”.

FRENCH CJ: It does not delete them. It maybe just does not need to refer to them.

MR ODGERS: Well, we say that it was left out - - -

FRENCH CJ: I understand.

MR ODGERS: - - - deliberately and that that was because the view was taken, I am now descending in to work out why, but it was done deliberately so that when a judge is coming to apply 97, a safeguard designed to ensure that tendency evidence only comes in if certain requirements are met or 137, a safeguard designed to prevent miscarriages of justice, we say that in performing that task the judge is not constrained in the way the judge was constrained when assessing relevance.

The judge is not constrained and required to assume that the evidence will be accepted. That is not what the judge is doing and deliberately intended to be the case that the judge is not constrained in the same way that the judge was constrained when assessing relevance and that is because there are concerns about certain categories of evidence or there may be concerns about risks of prejudice which necessitate that a judge is not constrained in that way.

BELL J: When you mentioned risk of prejudice a moment ago, you introduce the second half of the 137 test which really is directed to other considerations than probative value.

MR ODGERS: Yes.

BELL J: But the difficulty you face is the observation that Justice Gaudron made in Adam - - -

MR ODGERS: Of course.

BELL J: - - - how can evidence, if you do not assume that it is accepted, how can it rationally affect it.

MR ODGERS: Of course, I will be coming to that but I do need to - I have tried to demonstrate that it is not correct to say that because the words are found in the definition of “relevant evidence” that somehow that means that the assessment of probative value proceeds on the same assumption.

We say that the converse is true, that while assessing relevance requires that assumption to be made, the definition of “probative value” which deliberately left out those words, does not require that assumption to be made and that those words were left out, presumably deliberately, in order to remove the constraint that applied to the assessment of relevance.

KIEFEL J: I think one aspect of your submissions might deny the steps in which evidence is considered and dealt with. As I said, section 55 is a gateway provision. The test has been done and resolved before you get to determine tests like probative value which are additional tests. They are not different and stand apart. They are tests which are applied one after the other.

MR ODGERS: Of course.

GORDON J: As the diagram at the beginning of Chapter 3 points out.

MR ODGERS: Of course. All evidence must be relevant. If it is not relevant it does not come in.

KIEFEL J: Quite so?

MR ODGERS: So, there is a relevance gateway but we say it is a relatively undemanding gateway. Then the Act imposes other gateways or hurdles to be jumped. Hurdles, I prefer to use that analogy, and 97 is one such hurdle and 137 is another such hurdle. So, the question then becomes, even though this evidence is relevant as defined in 55 must it nonetheless be excluded and the Court is required to apply the hurdle as defined in 97 and 137 and for tendency evidence the hurdle is significant probative value. Probative value is defined in a way which draws on some of the words of relevant evidence - of relevance - but take some away and add some. It becomes a question of assessing an extent, not just whether it is relevant or not.

Even evidence which would have minimal probative value would be relevant because relevance is not a demanding test, it just has to affect the probabilities even minimally. So that is one important difference. It is a question of extent. What is the extent to which it could affect the probabilities? But, we say, the omission of those words “if it were accepted” means that the judge in assessing that extent is not constrained when looking at this hurdle to assume that the evidence will be accepted. That is the best I can express it.

KIEFEL J: Just a point of clarification – do you say that section – after the section 97 question is resolved that section 137 may nevertheless be applied?

MR ODGERS: Yes.

KIEFEL J: So, there can be further tests.

MR ODGERS: Yes.

KIEFEL J: Do you contend for that in relation to the tendency evidence? I was not sure about that. It is only in relation to the - - -

MR ODGERS: No, it is rather confusing because the Court of Criminal Appeal dealt with 137 in the context of tendency evidence where it really was not argued there.

KIEFEL J: Yes. So, it is only in relation to the complaint evidence you were - - -

MR ODGERS: It was the complaint evidence where it was really argued. That is not surprising because, of course, as your Honours would appreciate, section 101 imposes a balancing test which is even more restrictive for tendency and coincidence evidence led by the prosecution in a criminal trial and 137 would not really have any work to do if you said it got through the 101 hurdle, if I could use that language. But, we say, the evidence did not or could not get through the 97 hurdle or it would be open to conclude it did not if the test were properly applied.

GAGELER J: Mr Odgers, can I just confuse things a little by asking a really basic further question of terminology? When section 55 refers to evidence that “if it were accepted”, does it simply mean if it were accepted as a truthful statement or does it mean something different?

MR ODGERS: We understand it to mean if it were accepted as reliable which means not only truthful but evidence in respect of which reliance may be placed – to use our formulation of the word “reliable”.

NETTLE J: Factually correct.

MR ODGERS: Yes, precisely. Thank you, your Honour. Factually correct, yes. So, to take an example – when an identification witness says, I identify the accused as the person who committed the offence, that evidence, in assessing the relevance of that, it will be on the assumption that the witness’ assertion that the accused was the offender will be accepted as factually correct.

NETTLE J: Yes.

MR ODGERS: So, not much difficulty in concluding that that witness’ evidence is relevant. We say when you are assessing the probative value of that identification witness for the purposes of 137, it may be different. What I mean by that is that factors bearing on the reliability of that identification witness can be taken into account in assessing the probative value of that identification witness whose evidence is relevant but may nonetheless be of low probative value. I am getting ahead of myself a little. So, that was the argument relating to statutory context and the words of section 55 and we have dealt with that in our written submissions at page 7 and I will not say any more.

We then argue that the approach taken – that I will call the restrictive approach – in Shamouil and other decisions of the Court of Criminal Appeal of New South Wales and, of course, the Court of Criminal Appeal in this case in the Northern Territory effectively adds words to a statutory definition and we say that, in accordance with general principles of statutory construction, paragraph 6.21, there has to be a proper basis shown for adding words like that.

This leads me, of course, to what Justice Gaudron said in Adam because that may well be what this appeal turns on, to some extent, at least. If I could take you to that judgment. It is reported in (2001) 207 CLR 96. The facts of the case need not concern your Honours. I do not think they bear on this case. Indeed, her Honour was discussing the words “probative value” in the context of section 103 and that provision has been amended. So, again, it is not directly relevant but what matters is her Honour’s observations which was in a dissenting judgment, of course, and the other members of the Court did not refer to this issue at all. We have drawn attention to what we say is a contrasting approach taken by Justice McHugh in Papakosmas and I will come to that in due course. In Adam, at page 115, her Honour said at paragraph 59:

The dictionary to the Act defines “probative value” to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” –

Then her Honour notes that –

echoes the substance of s 55(1) –

And then her Honour notes that it –

differs from s 55 in that it is not predicated on the assumption that the evidence will be accepted.

We agree with that, and that is partly our response to Justice Kiefel’s question asked of me. Then, paragraph 60 –

The omission from the dictionary definition of “probative value” of the assumption that the evidence will be accepted is, in my opinion, of no significance. As a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted. Accordingly, the assumption that it will be accepted must be read into the dictionary definition.

We, with great respect to her Honour, take issue with that logical analysis. We have dealt with it in the written submissions at paragraph 6.23. The point we make there is that – we may agree, that if evidence is not accepted, if a tribunal of fact comes to a positive conclusion that a witness is completely unreliable, or manifestly a liar, that evidence will not affect the assessment of the probabilities.

We say that there are degrees of acceptance, and degrees of probative value. If you completely reject evidence, it would have no weight, but on the other hand, a rational fact finder may not completely accept evidence, harbour doubts about truthfulness or harbour concerns about reliability, and give less weight to the evidence by reason of those considerations. The evidence will still rationally affect the assessment of the probabilities. It will still have some weight, but that weight will be less than it would have had if the evidence were completely accepted.

FRENCH CJ: But the terminology of reading into the dictionary definition the assumption that the evidence is accepted may not be apposite in dealing with the constructional point, I think, put to you by Justice Kiefel. What I put to you is this; do you accept – I know your submission is to the contrary in terms of the preferable construction – that it is a construction that is open that the definition of “probative value” is made on the premise that the evidence is relevant and that it is accepted?

MR ODGERS: It is made on the premise that the evidence is relevant - - -

FRENCH CJ: If accepted.

MR ODGERS: - - -which in turn is determined on the basis that it will be accepted.

FRENCH CJ: In other words, without reading in anything, it just forms part of the logical structure. I am just putting to you, is that construction open, or do you say it is simply not available on the text?

MR ODGERS: It is not available. I say it is not available.

FRENCH CJ: Can you explain why?

MR ODGERS: Upon risk of repeating myself.

FRENCH CJ: Well, I am not sure that you have explained why it is not open.

MR ODGERS: It is my own inability to explain something clearly. There are two hurdles. One is a test of relevance and that is a relatively easy hurdle to jump because it requires the judge to assess relevance on the assumption the evidence will be accepted. We have a special hurdle for tendency evidence, as expressed. It is a different hurdle. It requires an assessment of significance but it also requires an assessment of probative value, which is defined in a particular way.

It is defined in a way different from relevant evidence in that it does not require the judge or the court to assume that the evidence will be accepted so that, in determining whether or not that hurdle has been jumped, the court is not so constrained as it was when it was assessing relevance and, therefore, it would be reading words in that are not there, when they were deliberately left out, because the intention manifestly of the legislature was that the court was not to assume that the evidence would be accepted when it was assessing the probative value of that evidence. That is what we say is the inevitable and only conclusion.

FRENCH CJ: It just strikes me that there are some conclusionary statements embedded in that argument which really do not negate the textual possibility that I put to you.

MR ODGERS: It may be that, when I take your Honours to Papakosmas I think I will be placing some reliance on the analysis of Justice McHugh and I think, to some extent, I have been probably putting it not as well as his Honour put it when he analysed the interrelationship between relevance and an assessment of probative value for the purposes of 137, so it may well be that I will be pointing your Honours to that as a better answer than the one I am able to give.

KEANE J: To the extent that there are textual possibilities pointing either way, is it a reason to prefer the view put against you that it is more respectful of the role of the tribunal of fact?

MR ODGERS: Your Honour, we accept that there are competing policies in this area and they were competing policies which informed the approach of the Law Reform Commission and informed Parliament when it enacted the Act. On the one hand there is undoubtedly a policy which gives deference to the role of a jury and takes the view that you want juries to determine the facts and, on that premise, all relevant evidence really should go in and they should be able to make a judgment on the basis of all the material that is available to make an accurate, factual determination. That is a legitimate policy concern, desire or goal.

But there is a competing policy or there are competing policies. One of those –and we say Chapter 3 of the Evidence Act is a manifestation of that –is that the rules of evidence perform a gatekeeping function that exclusionary rules are designed to impinge on the jury’s function in that sense and to prevent the jury from receiving or hearing evidence which is relevant for good reasons - at the end of the day the quality of the evidence that comes before the jury and that, particularly in criminal cases, there is a policy which is also significant which is that the rules of evidence are designed, in part, to minimise the risk of a miscarriage of justice and that evidence which is relevant might, nonetheless, be excluded if there are particular reasons to believe that it creates an unacceptable risk of a miscarriage of justice.

There are exclusionary rules which are premised on that assumption. Then 137, we say, involves that kind of analysis so that is a competing policy concern and these things are juggled by Law Reform Commissions and Parliaments and, to some extent, courts in interpreting provisions and we do not shy away from the proposition that an argument against us is the one that if one gives particular significance to jury deference or the policy of jury deference then that would necessarily mean that you would take a fairly restrictive view of assessments of significant probative value for the purposes of 97 and also a fairly restrictive view of assessments of probative value for the purposes of 137.

KIEFEL J: At the policy level that you are talking about, and at what I think is generally accepted fundamentally as the role of judge and jury, the example that you gave earlier of why a judge might determine in relation to determining probative value whether a person is manifestly a liar – why is that not par excellence a question for a jury? Why should a judge be determining it? The second question is: if one returns to the statute, one should be able to discern from the statute what the roles are rather than the other way around. In section 55, is that not a strong indication that the role of the judge is to proceed upon the basis of acceptance of the jury and then deal with the matter by way of direction otherwise?

MR ODGERS: Absolutely. The effect of 55 is that absent some other important consideration, which may be a concern about a certain category of evidence being particularly dangerous or a concern that there is a particular reason for thinking that the tribunal might be misled – absent those considerations – the proposition of jury deference means that relevance is assessed on the assumption it will be accepted and that will mean that the evidence will be held to be relevant relatively easily and the jury will get to hear it.

KIEFEL J: You alter the role for the purpose of section 97.

MR ODGERS: We say that statute alters the role, the statute, because we are dealing with a particular category of evidence in this case, tendency evidence, which carries with it particular risks and dangers and which justify a particular gatekeeping function, which require a particular gatekeeping function, and in criminal cases a particular concern to guard against miscarriages of justice that a particular hurdle is created which does not require the same level of deference that is required when assessing relevance.

I am now reading in policy to the formulation of these provisions, and I am hesitant to do that, but we would say that 97 reflects a policy concern that there is a particular danger with this kind of evidence in terms of accurate fact finding and that it is necessary to impose a hurdle and that the hurdle is one which allows or requires a judge not to assume that the evidence will be accepted but to assess its rational capacity to affect the probabilities unconstrained by any such assumption.

Can I say, just so we are very clear about this, we say that the definition of “probative value” does not require a judge to assess weight. It does not require a judge to make judgments about reliability or credibility, to make findings of fact about reliability or credibility. What a judge is required by the definition to do is to ask what it would be open to a rational fact finder to find or, rather, what weight would it be open to a rational fact finder to give the item of evidence, but unconstrained by an assumption that it will be accepted by the fact finder. The judge does not do that. The judge does not assume it will be accepted. The judge does not assume that the evidence is reliable, for example.

KIEFEL J: But it is taking on the role of the finder of fact. You have just said that – you say what is open and rationally defined. That is going beyond a qualification of the evidence as having a particular degree of value to the question of fact before the jury. It is to answer it for the jury.

MR ODGERS: We adopt what the Victorian - - -

KIEFEL J: How would you apply it in the present case? I think you have conceded that of itself the evidence, the tendency evidence would have significant probative value of sexual interest in the complainant.

MR ODGERS: If it were accepted.

KIEFEL J: If it were accepted.

MR ODGERS: Yes.

KIEFEL J: So you would say the trial judge should undertake what task and determine what?

MR ODGERS: What is the extent to which a rational fact finder could conclude that this evidence affects the probabilities that the accused committed the offences charged and without an assumption that the evidence will be accepted and that if one performs that role or task the conclusion that you would reach is it does not have a capacity to significantly affect the probabilities because it comes from the very person whose credit is in issue in the trial and, adopting the language of Justice Bell, for that reason it lacks significant probative value.

FRENCH CJ: That is almost an inherent, if you like, characteristic or an attribute of the evidence. It does not involve so much a weighing – because it involves what you suggest is an element of bootstrap reasoning that you say that it lacks significant - - -

MR ODGERS: When one applies the words of the definition and asks what is the extent to which that evidence could rationally affect the probability that he committed the offence as charged. If you do not assume it is going to be accepted, if you do not do that, the conclusion you would draw – a rational fact finder would draw is it cannot have a significant bearing because it comes, in this case, from the person whose credibility is in issue. You are not adding in a requirement of corroboration. You are not doing anything other than applying the words of the definition.

KIEFEL J: Well, are you not adding the words “because it cannot be accepted by the jury”?

MR ODGERS: No, I am not adding those words, your Honour.

KIEFEL J: It will not be accepted by the jury because they will put no weight upon her evidence.

MR ODGERS: Then they could not.

KIEFEL J: They will not accept her as a witness of truth.

MR ODGERS: A rational fact finder – a rational fact finder would or could, could not say that that is significant evidence. Why? Because it comes from the very person whose credit is in issue in the trial.

KIEFEL J: But the jury at this point has not received all of the evidence at the trial so that they are able to form a view about her credibility as a witness.

MR ODGERS: No, but there was never any suggestion from the Crown in this case that there would be any other evidence which would - - -

KIEFEL J: But you cannot determine these questions by reference to other evidence, in any event. They are of their nature a voir dire-type question.

MR ODGERS: We say that as a practical matter the way that these things work is that the Crown would be given an opportunity to say, well, we say there is going to be other evidence which bears on this question and can explain what that evidence will be and the judge is required to take that into account and it may be done in a relatively informal manner.

KIEFEL J: It can have regard to other evidence. But you are not – but what section 97 does not talk about is the view of the whole trial that the jury will have which is distinctly different from the view that a judge will have where at a particular point the Crown is able to add bits of evidence together. The jury is going to have a different perspective.

MR ODGERS: Your Honour, the judge is required to engage in an assessment. It may be the judge is not able to do it at a particular point in time, in which case it may be the judge will say we will have to leave that until later, but I put that practical point to one side.

Can I just explain it this way? If the Crown had said to the judge at the time that the tendency evidence issue – admissibility was being considered _ “Your Honour, we will be calling another witness, the person who was present at the time of the massage. That person will also testify that she saw the accused run his hand – touch the leg of the complainant”. So, hypothetically, let us assume that that were to happen. In that situation, it would now be a situation where there is evidence from somebody else whose credit is not fundamentally in issue in the trial already and where the judge would undoubtedly conclude that in the circumstances the evidence now did have significant probative value because it came from a different source. It might be an admission by the accused.

But in this trial it was understood from beginning to end – and certainly it was understood by the trial judge at the time of ruling on admissibility because the complainant herself had so testified – that the other person did not see this incident. The only source of evidence of the tendency was the complainant and at the end of the trial that would be the only source of the evidence.

So, it was understood, and the Crown never sought to suggest otherwise, that the only source of the evidence of tendency in the trial would be the complainant, given that, we say, that the only rational, reasonable – the only proper or correct conclusion is that the evidence could not have significant probative value.

NETTLE J: But if that were true then in every case in which the complainant gives evidence of either uncharged acts or – to use the old language - similar fact, you would say that the judge would have to conclude that it could not materially add to the probability of a finding of guilt.

MR ODGERS: In those cases it would not come in as tendency evidence. The jury would not be invited to engage in tendency reasoning or propensity reasoning, to use the common law language, and it would come in simply as “context”. With respect, your Honours, that is what has pretty much always happened in the past. Until the last couple of years, I have not been able to find a case under the common law, certainly, where Crowns have even tried to rely on evidence of a complainant’s allegations relating to other incidents to show a propensity - - -

KIEFEL J: I think you will find that there are such cases.

MR ODGERS: - - -uncorroborated - - -

KIEFEL J: I think you will find that there have been such cases.

MR ODGERS: Well, so be it, your Honour. If I am wrong, I am wrong.

KIEFEL J: How, in any event, would you get it in as context evidence?

MR ODGERS: On the same basis that the judge allowed in evidence from the complainant that there were other incidents involving – in this case it may not be appropriately allowed in as context evidence, whereas the other incidents that she gave evidence of fitted within – explained why there might have been delay and complained, or explained why she might have acted in the way she did – she alleged she did at the time of the commission of the particular offences. This was six months after the last charged offence and it is difficult to see how it would really bear on the credibility of the complainant that she alleged that there was this other incident.

So, I am not saying it was admissible as context evidence but in response to his Honour Justice Nettle I am saying that evidence from a complainant of other uncharged acts – if it comes from the complainant – would be generally admitted usually as context evidence to put the allegations relating to the charged acts in the complete context of her complete story. Is that answering your Honour?

NETTLE J: That certainly answers it, thank you.

BELL J: Testing the policy aspects of the discussion but by reference to another example - you spoke of the reasoning in Shamouil as supporting what you describe as a restrictive approach which you contend is in error. In Shamouil what was said was the trial judge had erred in taking into account her assessment of the credibility and reliability of a witness who had made a photographic identification and the trial judge did that because the witness had subsequently retracted that identification.

In saying that the trial judge had erred in taking into account the impact on the credibility of the witness of the later retraction, the Court of Criminal Appeal saw it as the function of the jury to weigh the significance of that matter in the context of the evidence as a whole, when a number of other inferences were available, from the circumstance of an initial forceful identification and a subsequent retraction in the context of the whole of the evidence. That relied on taking an assessment of the probative value of the evidence upon an assumption that the jury might accept it.

MR ODGERS: Would accept it?

BELL J: Well, on the assumption that in determining the significance - no, it was not, it was a 137 consideration. In determining probative value versus danger of unfair prejudice, one assumed that it would be open to the jury as a rational fact finder to accept this evidence and so that is how the court dealt with it.

MR ODGERS: Yes.

BELL J: Turning to your example in your outline, you talk of the identification carried out in sort of circumstances of distance and fog and every other difficulty that could be imagined.

MR ODGERS: Yes.

BELL J: Now, if there was some prejudice about such evidence, some risk of unfair prejudice, a court applying Shamouil, as I understand it, might well say the probative value of this evidence is relatively low because it is an identification on a foggy day, in darkness, by a person, someone they have never seen before, at a great distance. None of that involves the court getting into a consideration of the strength or otherwise of the credibility of the identifying witness. So, in the way Shamouil speaks of credibility and reliability, it may be pejorative to speak of it as a restrictive approach. That is the matter I am raising.

MR ODGERS: Thank you, your Honour. I think there may be some differences of opinion both in the courts and in academia about what exactly Shamouil stands for. There are a number of things I want to say in response to your Honour. Firstly, Shamouil is understood generally, and it was certainly understood by the Court of Appeal in Victoria in Dupas, to extend beyond assumptions relating to credibility but also to extend to an assumption that the evidence is reliable. Certainly in Shamouil one of the arguments to support exclusion under 137 in that case was not going to reliability but going to circumstances of risks of transference, I think, or suggestion. I cannot remember the - - -

BELL J: The displacement effect.

MR ODGERS: The displacement effect. That was a matter that goes to classical reliability. Shamouil has been understood, perhaps erroneously, to say that except in extreme circumstances the requirement that you assume that the evidence will be accepted – the language of Justice Gaudron – means that you assume that it will be regarded as not only credible but also reliable, and indeed in the New South Wales Court of Criminal Appeal Justice Simpson has said on a number of occasions that you disregard considerations going to reliability, credibility and weight; not just credibility but reliability as well. That was what the Victorian Court of Appeal understood Shamouil to say.

BELL J: The matter that I was raising with you was then posited on there being some aspect of unfair prejudice so the court had to engage in some consideration of measuring the incommensurables of probative value against risk of unfair prejudice.

MR ODGERS: Yes.

BELL J: Very frequently in this debate the argument slips into consideration of unfair prejudice as a reason why it is suggested the court should be embarking on the less restrictive approach, to use your terminology, that you support.

MR ODGERS: I am not quite sure how to respond to that. What Shamouil was understood to say is that even if probative value disregards considerations bearing on reliability and credibility that somehow – certainly reliability considerations can be factored in in some way to the assessment of unfair prejudice.

So that Shamouil was understood to say you assess probative value on the assumption it will be accepted, which means you disregard concerns going to reliability and credibility, and you assess probative value in that circumstance. It is an identification witness. That means the evidence is highly probative because the evidence is the accused did it – I saw it – it is assumed to be accepted, disregard reliability concerns, probative value is very high, but in certain relatively unclear circumstances in extreme cases it appears you can say we take into account reliability, nonetheless – I am not sure what that extreme circumstance is – but also you can take it into account in some way when you are assessing unfair prejudice.

It has been pointed out in a number of academic articles which we have drawn your Honours’ attention to in the outline and in the list of authorities and in the written submissions that if that unnaturally or artificially elevates the assessment of probative value to a very high level it is going to be very difficult to ever have a situation in which it is outweighed by dangers because it is at such an artificially high level, because it disregards concerns of reliability and credibility that it will be almost inconceivable that the evidence – even in these matters your Honour raises – would lead to a conclusion that the probative value is outweighed by such dangers.

So, one of the criticisms of Shamouil and, ultimately, of Justice Gaudron’s analysis is that to work on the assumption the evidence will be accepted, to assume that it is both reliable, completely reliable and completely credible has the effect that it artificially raises the assessment of probative value to a point where it is going to be almost inevitable that the evidence will be admitted.

BELL J: On the other side of the coin one has, adopting the less restrictive approach for which you contend, the necessity not infrequently to effectively run all the prosecution evidence on a voir dire.

MR ODGERS: I understand that there is an argument that is advanced, and I will have to deal with it, that there are practical considerations at work or efficiency considerations which argue against the view – the approach that we advance. I will deal with those, if it is all right, in due course. But to get to the nub of what your Honour said to me about Shamouil, it is interesting - and I will take your Honours to Justice Heydon’s article where he has expressed a view. I do not know whether all of these matters assist your Honour but there has been a lot of academic toing-and-froing and Justice Heydon has come out on the side of what I will call the “restrictive” approach and then there is a number of articles written which take a rather less – or support a non-restrictive approach. Justice Heydon, interestingly enough, endorsed Justice Gaudron’s proposition that the evidence is to be assumed to be accepted but then went on to give the very kind of example your Honour gives and maybe your Honours - - -

BELL J: I take it that is why it turned up in your outline.

MR ODGERS: Well, yes, I have used that very example. Perhaps it would be useful to just go to it now, to Justice Heydon’s article, because it is, we say, significant. It is an article by the Honourable J.D. Heydon, 2014 Paul Byrne Memorial Lecture. It is in “Current Issues in Criminal Justice” volume 26 number 2. I will not take your Honours through it in detail, maybe perhaps Mr Walker might, but at the bottom of page 227 – I am not sure whether I should call him Mr Heydon or former Justice Heydon but I will refer to him as “his Honour” - referred to Shamouil and then referred to Justice Spigelman referring to Justice Gaudron’s conclusion which I have taken your Honours to. Then, over the page his Honour refers to this debate about whether or not those words have to be assumed to be included and then his Honour says at the end of the first paragraph the argument that the absence of the word is “fatal” to her Honour’s analysis:

But this fails to answer her point: how can one conclude that the evidence can rationally affect the assessment of the probability of the fact in issue unless one accepts the evidence for the purposes of that exercise?

There may be some ambiguity about the word “accepts”. We had always understood, from our point of view, that “accepts” means that you treat it as factually accurate - to use Justice Nettle’s terminology “both reliable and credible.” However, interestingly enough, in the example his Honour gave on the next page, 229, in the second last paragraph, beginning with the words “The disputation between” he gave the example, which we have built on in our outline. He says, about seven or eight lines down:

Even if the evidence is to be accepted in the sense of being taken at its highest level -

I will stop there for a moment. We say that the effect of the definition of “probative value” is that – I am sorry, have I got the wrong – I am using a - - -

GAGELER J: We seem to have a different document.

GORDON J: I think you are on page 234 of what we have got.

MR ODGERS: Thank you, your Honours, I have probably got the wrong document. My junior’s is the same.

GORDON J: Page 234 on ours, the last paragraph.

MR ODGERS: Thank you, your Honours. Is that a paragraph that begins with the words “The disputation between”?

FRENCH CJ: Yes.

MR ODGERS: Yes, thank you, your Honours.

FRENCH CJ: This is from “Current Issues in Criminal Justice”.

MR ODGERS: Yes, I am sorry, your Honours. The document I have is obviously not – it may have been taken from an electronic website and therefore it has come out differently. I apologise for that. I do not know if your Honours found that the reference earlier to where I took your Honours to the discussion of Shamouil and the reference to Justice Gaudron’s - - -

KIEFEL J: Perhaps if you could just run over that again.

GORDON J: Page 232.

MR ODGERS: Thank you, your Honour. That is in the middle of the page, and then his Honour asks:

how can one conclude that the evidence can rationally affect the assessment of the probability of the fact in issue unless one accepts the evidence for the purposes of that exercise?

The point I made then was well, what exactly does his Honour mean by “accepts”? Then I took your Honours to that example – I am sorry, I have now forgotten what page it was on.

GORDON J: The bottom of page 234.

MR ODGERS: Thank you, your Honour. It is the last paragraph, about seven lines down, his Honour says:

Even if the evidence is to be accepted in the sense of being taken at its highest level –

We say the definition requires it to be taken at its highest in the sense that I have explained. You are looking at its capacity, rationally, to impact on the probabilities and that will mean that a judge does not ask himself or herself “What do I think its impact on the probabilities are?” but “What could a rational fact finder regard it as having an impact on the probabilities?” so, in that sense, taking it at its highest. Then his Honour proceeds:

the circumstances surrounding the evidence may indicate that its highest level is not very high at all. One example would be an identification made very briefly –

And he gives the example we built on. His Honour says:

Or should we say: ‘It is an identification, but rather a weak one?’ A very weak identification at its highest is not equivalent to a very strong identification – only a very weak one. From that point of view it does not matter whether one takes the Victorian approach, which would seek to isolate and evaluate in detail particular weaknesses in the evidence, or the New South Wales approach, which takes inherently unconvincing evidence at its highest, but treats it only as weak because it is inherently unconvincing.

NETTLE J: Do you embrace that, this formulation?

MR ODGERS: Very largely, yes, your Honour. But we say that this demonstrates that you do not assume the evidence will be accepted. You do not assume that it is factually correct. You do not disregard considerations – at least going to reliability – and that even his Honour understands, as Justice Bell put to me, that you do factor them in to the assessment of probative value and you would conclude in the circumstances of the example given, that the evidence is weak i.e. low probative value. His Honour uses the word “inherently” but it does not have to be inherent. It may be that there are a whole range of factors which lead to a conclusion that it is unreliable or, at least, that a jury could not rationally conclude that it is not unreliable.

NETTLE J: Well, that is the same as Justice Basten in XY, is it not?

MR ODGERS: And it is the same as the Victorian Court of Appeal in Dupas.

NETTLE J: Well, perhaps, but nonetheless - - -

MR ODGERS: Well, we say it is. Certainly, we do say it is the same as what Justice Basten said in XY. Justice Simpson takes the view which is – I think it is said to be extreme by some of the commentators – which is that you disregard considerations going to reliability, credibility or weight in assessing probative value, but Justice Heydon and Justice Basten in XY clearly do not take that view. We say that if anything demonstrates the correctness of our argument that you do not assume the evidence will be accepted when you are assessing probative value.

BELL J: I think Justice Simpson embraces the reasoning in Shamouil which accepts that evidence may be of such a character that no jury acting reasonably could accept it, in which case that would dictate the outcome of the 137 discretion. So, that is the rare case of which Shamouil speaks.

MR ODGERS: Yes, your Honour.

BELL J: As I understand it, I think, indeed, in subsequent cases, Justice Simpson has adhered to her concurrence with the Chief Justice in Shamouil.

MR ODGERS: Our response to that is to say that that rare case essentially is one where the evidence – the judge concludes, in essence, that the evidence is not relevant because the judge concludes that the evidence lacks the capacity to have any bearing on the probabilities. In essence, that means that the assessment of probative value for the purposes of 137 adds nothing to the requirement of relevance. We say there is no statutory language which supports this kind of exception where we find that in the statutory language and we say, as a matter of policy, it is an extraordinarily narrow constrained exception for which there is no statutory support and which cannot be right because it ultimately says, well, you have taken into account factors going to reliability but only where they make the evidence irrelevant. We say that has got to be an erroneous approach.

So, I was going to take your Honours to what Justice Basten said in XY, but I am concerned not to overdo it. We say that I have said what I have said about that and will not take your Honours to it. I have said all I want to say about Justice Heydon. We say that there is something of a tension between Justice Heydon’s endorsement of what Justice Gaudron said and his own view as to what you can take into account when you are assessing probative value and which we say is correct insofar as it goes but, as is important, your Honours appreciate, we say that the consequence of not being constrained to assume that the evidence will be accepted, that that has significance both in the sense of taking into account reliability considerations but also to the extent that they may have some work to do in the context of 137, considerations that might be classified as credibility considerations.

We say you are not required to assume that the evidence is truthful and that that means that in this case, where the evidence of the complainant was that he touched my leg, the omission of the words “if it were accepted” means that the court is not required to assess probative value for the purposes of 97 on the assumption that the complainant’s account is truthful, which would lead to a conclusion it had significant probative value, but without making that assumption, the conclusion that one would draw is that it lacks significant probative value for the reasons I have articulated.

GAGELER J: Is it possible that the words “if it were accepted” appearing in section 55 mean, if it were taken at its highest?

MR ODGERS: That may be what Justice Heydon understands it to mean. I am not sure it has ever been understood in that sense. I have difficulty in supporting it. I am not aware of any authority to support it. I would not endorse that in my submissions, your Honour.

KIEFEL J: As a matter of language, one usually speaks about acceptance by the finder of fact.

MR ODGERS: Correct. So, the judge - - -

KIEFEL J: In a criminal case, the jury.

MR ODGERS: Yes, and so in assessing relevance, the judge is required to assume that the tribunal of fact will accept the evidence and then determine, well, if they did accept it, could this evidence affect the probabilities on that assumption. So, if a witness said, well, I have looked at the tea leaves in my cup and they tell me that the accused is guilty, the court is required to assume that that is truthful and reliable evidence, that she had looked at the tea leaves and that she had formed an opinion that the accused was guilty and then the judge would say, notwithstanding my assumption, I accept everything you say and I assume that the tribunal of fact will accept everything you say, that that is your opinion, but it is not relevant because no rational fact finder would regard that as having an effect on the probabilities.

In that very extreme case, the evidence would not be relevant, but the identification witness - as I explained, the evidence would necessarily be relevant, and we say that when it comes to assessing probative value in the context of 137, where there are undoubted potential dangers which may be dangers that a jury will not properly take into account or be able to take into account – the kinds of unfair prejudice that we understand might apply – that in assessing the probative value of that identification evidence, the judge is not required to assume that the evidence will be accepted. But to assess probative value, taking into account all rational considerations that would bear on an assessment of weight by a rational fact finder and applying the capacity test, assess probative value on that basis which may lead to a conclusion that the identification evidence is of low probative value, that does not require exclusion.

The mere fact that you conclude that evidence is of low probative value will not matter in the slightest, unless it is tendency evidence. Where it is identification evidence, it will only require exclusion where there are also present significant dangers of the tribunal of fact misusing the evidence, or misestimating the value of the evidence when it comes to assessing its weight. If one assesses the evidence on the assumption it will be accepted, probative value necessarily must be very high and, therefore, it is hard to conceive of circumstances where the 137 mandatory rule would ever operate to require exclusion.

BELL J: But that again depends on the assessment of the evidence in the context of the case. It is by no means a case that acceptance of a particular item of evidence will necessarily mean that it has high probative value in the sense of its capacity to rationally bear on the determination of a fact in issue.

MR ODGERS: To use the two different approaches, one is you assume it is accepted. If that means you assume it is reliable and credible, it will necessarily, we say, have high probative value. But if one approaches it in the way that Justice Heydon did in that example, concerns going to a liability can be factored in to conclude that it is a low probative value; in which case, that may result in exclusion under 137.

BELL J: But when we are looking at capacity to rationally affect the probability of the existence of a fact in issue, the court in considering probative value is looking at the capacity of proof of this item of evidence to rationally affect the probability of X or Y, and that depends very much on what the first item of evidence is. You may have low - - -

MR ODGERS: I could not agree more, your Honour.

BELL J: Yes. Can I just inquire whether your, as I understand it, acceptance of the analysis of Justice Basten in XY [2013] NSWCCA 121; 84 NSWLR 363 at 377, paragraph 48, accepts his Honour’s statement:

The prosecution is entitled to have its evidence assessed according to its capacity to support the prosecution case, which is not to say that the reliability of the evidence may not be a factor, at least in some cases, in applying the test provided in s 137.

MR ODGERS: We would take out the words “at least in some cases”. We would say it must – if there are factors going towards unreliability, the judge must always take them into account in applying the test of probative value. If his Honour is there adopting the approach of Chief Justice Spigelman of saying normally, most cases you assume it is reliable and credible, but there will be certain cases where it is so unreliable that it does not have any capacity to affect the probabilities. If that is what his Honour Justice Basten is adopting, we say that that is erroneous.

BELL J: Reliability can be spoken of in terms that we see in the definition under the Act of “credibility”. That depends on the trier of facts’ assessment, not just of the sincerity of the witness in the evidence the witness gives, but the witness’ ability to give an account that may be relied upon as factually accurate.

In another broader sense – and it may be in that broader sense that Justice Basten is speaking in paragraph 48 in XY – one may look at other factors perhaps in the identification illustration that turns up in your outline. No question of the assessment you make of an individual who gives evidence and says, “I saw a person for a fleeting second at a distance of 200 metres on a dark night in an unlit street”, no voir dire could assist you in determining that that was, relatively speaking, an identification of low probative value.

MR ODGERS: Your Honour, can I just make the point that that illustrates, we say, the inherent error in the approach taken by Chief Justice Spigelman, because it is not a case where you would say that the identification could not have any effects on the probability. You would not say that the circumstances going to unreliability have the consequence that it has no impact at all and therefore no probative value at all, which is another way of saying it is essentially irrelevant.

If one takes the restrictive approach it would seem to follow that the assessment of probative value is to be assessed disregarding those factors going to unreliability. We say no, that is exactly wrong. You would always take it into account and you would come to a conclusion not that it has no probative value but that it is of low probative value, and that would not result in exclusion unless there were dangers of unfair prejudice which we do not need to go into.

We say that illustrates one of the flaws in this very restrictive view that says in only very restrictive circumstances does reliability get factored in, because in an identification case where you have just got factors which raise concerns, that test will not be met and therefore it would appear, on the approach taken in Shamouil, that you proceed on the assumption it is reliable, which is not what you should do.

I repeat myself: we say that a court, assessing probative value, should not exclude from consideration anything that a rational fact finder would take into account in assessing weight. You do not exclude it from consideration. But the question you ask yourself is not the question that the fact finder asks, which is, “What do I think its weight is?” The question you ask is, “In the light of all of that information, what is the level of weight that a rational fact finder could give this evidence?” That is the question you ask.

BELL J: That must necessarily involve the judge seeing and hearing the evidence in many cases.

MR ODGERS: That gets to the practical problems that, we say - and we dealt with this in the reply at some length - that, as Justice Price said in XY, these things can be done relatively informally often. As the Court of Appeal said in Dupas, their understanding of the common law was that this assessment of reliability occurred in respect of Christie and that has not created major problems of trials blowing out. I mean, we have lots of answers to this argument that this is going to somehow lead to Armageddon in terms of trials doubling in length. We say that that is just erroneous. We say that many of these things can be dealt with by the judge asking the prosecutor, well, what other evidence will you adduce which will bear on this question. It can be often done on the papers.

In the case of the tendency evidence in this case, the complainant did not even need to go in the witness box and the issue could be resolved. But we ultimately say that efficiency considerations cannot trump concerns about miscarriages of justice and that 137 is directed to ensuring that evidence that really no rational fact finder could regard as being of high weight i.e. it has got lower probative value, should be excluded if there are real dangers with the evidence as well. If it is very highly probative then it will still come in even if there are dangers, but the purpose is to ensure – minimise miscarriages of justice by keeping out poor quality evidence where there is particular dangers that the tribunal of fact will not be able to assess it properly and that, if it is excluded, the trial will become shorter, which is a good thing - - -

BELL J: Put to one side the tendency evidence, let us look at the complaint evidence. How, on your test, can the trial judge properly deal with the 137 objection except by hearing the evidence of SS the complainant and, indeed, all of the complaint evidence and then - - -

MR ODGERS: Well, that is what happened in this case, of course, so it happened anyway.

BELL J: But that in every instance – it requires - - -

MR ODGERS: My first answer to your Honour is this. When counsel for the defence stands up to the judge and says, your Honour, we are going to make a submission under 137, the first thing the judge will probably say is well, put aside, one, probative value, tell me why there is going to be a particular risk of unfair prejudice in this case - and bear in mind unfair prejudice is not prejudiced because the evidence is of low probative value. That is not unfair prejudice.

So, the accused’s counsel will have to articulate why there is a particular danger. In this case, there is a certain category of evidence which is - there is a particular danger of misuse or a particular danger of misestimation and, with respect, that has happened all the time in the past under the common law and only in those circumstances where something – a coherent argument is advanced that there is a risk of unfair prejudice which will get past first base.

FRENCH CJ: In relation to 97(1)(b) the Court is - it is a condition of admissibility of tendency evidence:

the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party –

et cetera. How is the Court meant to approach its consideration of other evidence adduced or to be adduced? What kind of exercise is it undertaking there?

MR ODGERS: I think that the judge would say to the Crown Prosecutor, are you anticipating calling any other evidence which would bear on this question.

NETTLE J: He will have the depositions.

MR ODGERS: He will have the depositions. The Crown Prosecutor will have the opportunity to say, well, you can see the depositions.

FRENCH CJ: And is it making judgments about that evidence? Because that all feeds into the question of whether there is significant probative value to be attached to the tendency evidence.

MR ODGERS: I can only answer that there may be circumstances in which it will be necessary for the judge to consider that other evidence but one would normally expect, in the vast majority of cases, that as a practical matter, the judge will be informed by the Crown and look at the depositions to be handed up to give an indication of what the other evidence is that is said to be relevant – or rather material – to that 97(1)(b) question. It may be the judge will say, I cannot make a determination of this until I know more clearly what the other evidence is.

FRENCH CJ: It contemplates an exercise in which evidence has been adduced as well - - -

MR ODGERS: Yes.

FRENCH CJ: That is, the section does. I am just wondering what that tells us about the nature of the exercise contemplated in determining significant probative value.

MR ODGERS: Your Honour, we would say that even under 137 you would do the same thing.

FRENCH CJ: Because you have got the same term, of course – probative value.

MR ODGERS: Yes, but it does not have those extra words.

FRENCH CJ: No.

MR ODGERS: But, in fact, we say that those actual words do not actually add anything. Their real function is to require the judge to disregard any defence evidence. That is what the real purpose of those words is. But, in any event, when you are assessing probative value under 137, you would do the same thing. In taking the evidence at its highest – in the sense that I have formulated that concept – you would consider the evidence in the light of other evidence that has been adduced or will be adduced. You would make a judgment about probative value when you are assessing the probative value of the identification witness’ evidence. You would not look at it in isolation. You would take into account what the other evidence in the trial has been or will be as you are informed by the Crown Prosecutor. You would disregard defence evidence because you would not be applying the definition properly if you took that into account.

KIEFEL J: But, would the judge have the benefit of cross-examination of a witness where reliability was in issue?

MR ODGERS: Well, the judge had that in this case.

KIEFEL J: And you would say that was appropriate in each case because otherwise the judge could not be in the position of determining, as you would have it, what was open to the jury.

MR ODGERS: Yes. It may be that if it is a case where the defence has articulated a basis for concluding that there is a risk of unfair prejudice – a real risk of unfair prejudice – which might outweigh probative value, then the judge would say, well, I can only make those kinds of assessments if the evidence is put before me. It may be that – I mean, voir dires happen in criminal trials all the time, with respect, your Honour, and there is nothing unusual about them and there is nothing unusual about - - -

KIEFEL J: They do not usually determine questions of credibility.

MR ODGERS: No. I mean, this is obviously something that your Honours are concerned with in relation to the credibility point.

KIEFEL J: Well, I think more generally it is the function of the judge and jury which is very much at the heart of your submissions.

MR ODGERS: I understand that, your Honour. What we have said - can I just draw your Honours’ attention to what we have said in the written submissions at paragraph 6.30. What we have said there is that even though credibility considerations, truthfulness considerations are not to be excluded by some form of an assumption when determining probative value, the operation of the test as it appears, requiring an assessment of capacity for a rational fact finder to assess the evidence, the practical operation of that will mean that in a vast majority of cases the judge would never come to a view that the probative value of the evidence is reduced by reason of the fact of some kind of truthfulness consideration.

That is because when you ask the question, what is the capacity of the evidence to rationally affect the probability of the existence of a fact in issue, where it is a witness in a trial who comes along and says, well, I saw the accused commit this crime, it would be open to a rational fact finder to conclude that the witness is telling the truth, and even if there are factors suggesting that the witness lacks credibility, the application of the capacity test will, in practical terms, never result in a conclusion that the evidence is of low probative value for that reason.

Now, your Honours would inevitably ask me, well, why is it different for the complainant and the answer is, not because you are making a judgment about the credibility of the complainant. You are not saying complainants are inherently lacking credibility. It is for the reason that Justice Bell articulated which we have put in our submissions, which is that when the judge is asking the question mandated by the definition of probative value and is asking, what is the extent to which the evidence could rationally affect the assessment of the question of the guilt of the accused, given that it comes from the complainant in this case and given that there is no objective support for it, a rational fact finder would not regard this evidence as having any real significance because, for the reason that has been articulated, it comes from the very person whose credibility is fundamentally an issue in the trial.

It is in that situation that refusing to assume that the evidence will be accepted bites, but in the vast majority of cases where the evidence comes not from the complainant but from any other witness, credibility considerations will never, practically speaking, result in assessments that the evidence is of low probative value because of the application of the words of the test. So what we say is that while the judge is not prevented from considering credibility factors, it would only be in most extreme circumstances where a judge would say, well, I have heard this witness, plainly no rational fact finder could regard this witness as being credible, as being truthful or some formulation like that and, in that case, it has low probative value.

But in the vast majority of cases that conclusion will not be reached, in which case the evidence will not be of low probative value by reason of that consideration. So we say that concerns that this will open the floodgate, so to speak, exaggerate and misunderstand what a proper application of the definition of “probative value” in the context of 137, in particular, will require.

NETTLE J: Just before you pass from 97 to the next point can I just ask you one question? One of the arguments or considerations which Justice Simpson mentions against your formulation that the judge has regard to what a rational jury could conceivably do with the evidence is that 97(1)(b) refers to what the court thinks rather than in contradistinction 137, what is. What is the answer?

MR ODGERS: Yes. I do not have answer for that one, your Honour. It is a bit of a mystery as to why the draftsman or the draftswoman or whoever it was put those words in there. At the end of the day, the question for an appellate court must be in reviewing that what I will call – I do not know whether it is an exercise of discretion, I assume House v The King principles apply – whatever approach you take to it, we say that in this case the analysis miscarried because the judge approached it on an erroneous basis and that is how we responded to it. So we sidestepped the problem, if I might say, your Honour.

NETTLE J: Thank you.

MR ODGERS: I am sorry, Justice Gordon, I think you were asking - - -

GORDON J: No, that is fine.

MR ODGERS: All right. Well, believe it or not, I think I was at the bottom of page 1 of the outline. A lot of what I have said has covered much of what follows thereafter. At the top of page 2, “if it were accepted”, well, I have dealt with that. I do not know whether your Honours saw in the – I will not take you to it, but in Justice Heydon’s article he was somewhat critical of what Justice Basten had said in XY and was critical of the words I think where Justice Basten adopted the language of what a jury might reasonably do. We say, well, that is just another way of saying what a rational fact finder could conclude. There is no difference between the two formulations and that is all that should be understood to be conveyed, so I will not take you to any more of that.

Now, extrinsic materials: as I understand the law under 62B, they are to be taken into account in supporting the natural meaning of the words. We rely on the Law Reform Commission reports to support what we say is the natural meaning of the words and the definition, and I have taken you to what we say is the natural meaning. We say the Law Reform Commission reports support that, and to the extent if there is any ambiguity – and your Honours may think that there is ambiguity – we say there is not, but if there is, then the Law Reform Commission reports can assist in resolving that ambiguity. Your Honours no doubt saw in the written submissions that we extracted part of ALRC 38 which was the Law Reform Commission report which resulted in the - - -

FRENCH CJ: Putting it another way, if there is a constructional choice open, you say the extrinsic materials point to your choice?

MR ODGERS: Yes, I think that is how we put it, your Honour. We extracted in the written submissions at page 9 the passage from ALRC 38, where they made it unambiguously clear that they considered that questions bearing on reliability or unreliability are to be taken into account when assessing the probative value of evidence. We also call in aid that in that passage, when the Commission talked about matters going to reliability, they gave examples and they said:

such as how recently after the event the statement was made, whether the person who made the statement had an interest or not in the matters referred to –

I stop there. Whether or not you have an interest in the matters referred to is a matter going to truthfulness – to credibility. It is not something that goes to reliability narrowly construed. We say that is an indication that credibility considerations were not intended to be in all cases excluded from the assessment of probative value. Even more strongly, it goes on –

and whether the circumstances placed some obligation on the person who made the statement to tell the truth.

Again, a matter going to credibility; was there circumstances which imposed an obligation to tell the truth? We say that is very powerful material supporting a conclusion that the definition of “probative value” – which is found not just in 137, but it is found in 97 and 98 and 101 and a whole range of other provisions – that that was intended by the Law Reform Commission to require a judge to consider questions of reliability and, where appropriate, consider matters going to credibility.

BELL J: The Law Reform Commission had in mind that the Act would enact a Christie discretion, as it were, and not section 137. You would say, in essence, it is one and the same?

MR ODGERS: I say two things. I say, firstly, that the definition of “probative value” that was proposed by the Law Reform Commission is identical with that found in the uniform evidence legislation. So, to the extent that the Commission is talking about the meaning of the term “probative value”, nothing has changed. I say in respect of what we say is a relatively minor change from the word “may” to “must”, as I explained earlier in my submissions, that is simply a statutory recognition that when you engage in the weighing exercise, if the conclusion is that probative value is outweighed by dangers of unfair prejudice, you would have to exclude.

BELL J: Just in terms of the history, do you make any submission concerning the question that was raised by Chief Justice Spigelman in Shamouil at a time when section 103(1) used the expression “probative value”, but in terms which his Honour suggested were inconsistent with it bearing the broader construction for which you contend? Now, of course, subsequently it has been amended, but - - -

MR ODGERS: I have to say, I have not turned my mind to that at all, your Honour, because 103 does not exist in those terms anymore. That does raise the question whether or not the definition is somehow to be given a different content in different parts of the Act, whether or not the words “probative value” are somehow to be given different content because it appears in 103 in the old provisions or 197 or 137. We say that the clear intention of section 3 of the Act is that the definition apply across the board. We say that the Law Reform Commission made it clear that it intended with the words “probative value” that a definition apply in all the circumstances in which those words are found.

We also say, importantly, that there is a real risk with members of the judiciary approaching the meaning of the words “probative value” from a Christie perspective because the fact of the matter is the definition was intended to apply in a whole range of contexts and that it is very dangerous indeed to say well, because we interpret Christie to have had certain content therefore we are going to interpret the definition to have comparable content. I accept the Law Reform Commission did say that in recommending 137 they understood that it was, in essence, the same as the common law, but they also said that the content of the common law provision was a matter of some uncertainty. So all we would take from that is that they intended that a court would weigh these two factors, but that is about as far as you can go. That is what we say.

That takes me to the third point on page 2, which is risk of joint concoction. I am not going to say much about this at all. The authorities have been shifting about this in the last year or two in New South Wales. Until the last year or two it was well accepted in both New South Wales and Victoria that risks of joint concoction is a factor that you do take into account when you are assessing the probative value of both tendency and coincidence evidence. That is still the position in Victoria. As I understand it, the position now in New South Wales is – if McIntosh is the last word on it – that you do not take into account risks of joint concoction when you are assessing tendency evidence but you do when you are assessing coincidence evidence.

My submission, with great respect, is that it is very difficult to see how that can be justified given that the same test is adopted in both provisions but, equally importantly, as a policy matter that creates obvious concerns that prosecutors who used to say well, we say it is coincidence evidence. We know there is a risk of joint concoction. We know that is going to be taken into account by the court in assessing significant probative value. We are saying it is tendency evidence and that is now to be disregarded.

Can I just say something about this issue of risk of joint concoction because his Honour Justice Heydon was rather critical of the High Court’s decision in Hoch, which was the decision under the common law where it was held that a real risk of joint concoction was a basis for ruling that similar fact and propensity evidence was - - -

KIEFEL J: May I interrupt you just to ask, what is the relevance of it to questions we have here?

MR ODGERS: The relevance of it is that the risk of joint concoction is a factor that goes to credibility. That is the point. If that is something that is taken into - - -

KIEFEL J: But that is of the nature of the question about concoction.

MR ODGERS: Yes, but the point is that there is a long, well-established line of authority that says, in assessing the probative value of coincidence evidence and tendency evidence, it is appropriate to take into account risks of joint concoction. That is, taking into account a factor that goes to truthfulness, to credibility. We call that in aid to say that is what – everyone has proceeded on that basis - that is inconsistent with a proposition that tendency and coincidence evidence has to be assumed to be accepted. It is inconsistent with a proposition which says in determining – applying 97, 98 and 101 you disregard factors going to credibility. It is inconsistent with that. So, that is the reason we draw it to the Court’s attention. It is a well-established line of authority which we say is good law.

But can I just say something about it to explain something? There has been criticism of the High Court’s decision in Hoch, that it is unduly restrictive. Under the Evidence Act, the question is significant probative value. We would say that applying the definition of probative value properly that it would very rarely be the case that the mere possibility of joint concoction would lead to a conclusion that the evidence lacked significant probative value because you are assessing its capacity. A rational fact finder might say, quite reasonably, yes, there is a risk of joint concoction but that risk if fairly small. There are good reasons to conclude that they are telling the truth. If you apply the definition of “probative value” as we say in the correct manner, you would not necessarily conclude that the evidence lacked significant probative value because of that possibility of joint concoction.

So, we say that if the approach for which we contend is accepted as correct, the consequence would be that, yes, in some circumstances tendency and coincidence evidence may well be excluded because it lacks significant probative value in those circumstances. But, it may not, and in many cases it will not. So, the current approach which seems to be either/or – it either goes out because there is a possibility or you disregard it, we say properly analysed, it will not necessarily be inadmissible and that is a desirable policy outcome if that is a relevant consideration.

Shamouil –we have dealt with it. We have drawn your Honours’ attention to some articles which are critical of the analysis in Shamouil. I am not going to take your Honours to those page references. We adopt much of Dupas in its criticism of Shamouil, although there are parts of Dupas we do not adopt, as your Honours appreciate. The particular aspect we focus on is the point I made earlier, which is that if you disregard consideration going to reliability that will artificially elevate the assessment of probative value for the purposes of 137 to a point where only in the most extreme circumstances will it be conceivable that the evidence might be excluded and that that is undesirable. Those articles all, in their own way, advance that proposition and support what we say is the approach that we have adopted, not necessarily for the reasons that we have advanced but, if it will assist your Honours, for other reasons which of course we would adopt if they assist us.

Dupas - I am not going to take your Honours to that decision. It is very long. In our written submissions we have dealt with it and explained what parts we adopt and what parts we take issue with. I will not say any more about that. We have dealt with it in the written submissions. Consequences, that has been something your Honour Justice Bell has raised with me.

BELL J: Perhaps before you get to consequences, just in light of your reference to Dupas which does involve a lengthy discussion of the common law and a little earlier you spoke of a long line of authority and you referred to Hoch, just in that context, can I just raise with you the unanimous judgment of this Court in Phillips v The Queen [2006] HCA 4; 225 CLR 303 where at 323, paragraph 63, speaking in the context of the common law but of:

the admissibility of similar fact evidence, and for that purpose comparing the probative effect of the evidence with its prejudicial effect -

it was necessary to give both due weight to the necessity to view the similar fact evidence in the context of the prosecution case. “Secondly”, the Court said:

it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury.

I raise that with you, Mr Odgers, simply because assertions that the common law is all one way need to be understood in light of that statement of the Court in Phillips.

MR ODGERS: Yes, we have not attempted to assay a thorough analysis of all the common law decisions and, importantly, we have placed very little reliance in our argument on the common law so I do not want to be unduly critical of either the Court in Shamouil or the Court in Dupas, but I have said already and I will say it again, that approaching the construction of the Evidence Act and a provision like 137 and the definition of “probative value” through the prism of the common law is potentially problematic and Papakosmas made that point very clearly. Of course, the Law Reform Commission did indicate that it thought it was consistent with the common law but we do not. Your Honours will see from the argument that we have advanced, both in the written submissions and today, we do not go down that route.

Back to consequences. I have dealt with this as best I can already to a very large extent. I just repeat the point. Sorry to be a burden, your Honours. You only need to assess probative value under 137 if there is a coherent argument advanced for unfair prejudice. The court in Dupas said, and we adopt, that under the common law if reliability considerations have been taken into account in applying the common law discretion it has not led to the end of the world. We adopt that and we say that that is correct and that District Court judges and County Court judges every day are capable of handling these things effectively. I put to your Honours that many of them would have the legitimate concern that they need to have the weapons to keep out potentially dangerous evidence and not have their arms tied behind their back, if I might use that analogy, in exercising those weapons.

I pointed to the proposition which is in the articles that artificially elevating probative value in the restrictive approach has the effect of undermining the gatekeeping role of the judge and we adopt that analysis. I pointed to the tension between jury deference and gatekeeping, but we say there is no tension between efficiency considerations and avoiding miscarriage of justice. If there is a basis for concluding that evidence will result in a miscarriage of justice, that trumps any kind of efficiency considerations, but we do not accept that there are major efficiency concerns.

If the evidence is excluded, the trial will be shortened. If the evidence is excluded then the role of appellate courts in having to conclude that verdicts are unsafe because juries may well have relied on evidence which was unreliable and it happens, with respect, more often than not these days in certain categories of evidence, particularly I would say, with respect, in certain areas of expert evidence where questionable expert evidence is being allowed in and - - -

FRENCH CJ: We are getting a bit off track here, are we not?

MR ODGERS: I am getting a bit - I am talking about policy considerations and I have said all I want to say about that. That takes us to the example. I am not going to say anything more about that. It was built on what Justice Heydon said but we have added other facts as well and we say that it demonstrates that what we call the restrictive approach is unsatisfactory and should not be adopted.

That leads to point 9. I can deal with this quickly. The tendency evidence - your Honours know what it is. We say that if no assumption is made that it will be accepted it would be open to find that the evidence did not have significant probative value. We have drawn attention to Qualtieri. That was a case - - -

FRENCH CJ: You essentially say that is because it comes from the complainant.

MR ODGERS: That is exactly right, and we draw attention to what is said in Qualtieri at those cited passages. I will not take you to them but the point was made there by I think Justice Howie, I forget who it was, that that is in fact right, that the view is that where it comes from the complainant, if there is no objective evidence to support it or no objective evidence – independent evidence – then it really will not have significant probative value. We adopt that analysis.

GAGELER J: Is that because it really rises no higher than what the complainant says in any event about the fact in issue directly?

MR ODGERS: Yes, your Honour.

GAGELER J: It is not necessarily because of any inherent unreliability?

MR ODGERS: No, your Honour, not at all.

BELL J: The Qualtieri argument does not depend on any assessment of the credibility of the complainant.

MR ODGERS: Correct, your Honour. You are not required to assume that it is going to be accepted; that is the point. If you are required to assume that, the point collapses. Then I have referred to DSJ and Burton. I will not take your Honours to them. The reason we have put them in there is because our friends – the Crown has referred to DSJ and the test that was adopted in that case with respect to tendency evidence and significant probative value and adopted a form of words which we say is correct. That is applying the words of the definition in the context of 97(2)(b) and that is exactly what you should do.

You should assess the capacity of the evidence to bear on the probabilities without preconceptions. That was in the context of a situation where the question was an inference to be drawn from the tendency evidence and in that context the Court of Criminal Appeal in DSJ held, well, you take into account competing inferences. You are not required to assume that the inference for which the Crown contends will be accepted.

But the competing view, and it is the view that Justice Simpson has adopted and it was a view that has now been adopted in New South Wales in respect of 137, is that the Shamouil analysis leads to a conclusion, not only are you required to assume that the evidence is going to be accepted and is relied on and credible; you are also required to assume that the inference for which the Crown contends is going to be drawn and you disregard competing inferences.

BELL J: Would that not follow from acceptance of Justice Basten’s formulation the prosecution is entitled to have its evidence assessed according to its capacity to support the prosecution case?

MR ODGERS: It would not follow from that, your Honour, because when – it is the same point we made, that you do not disregard relevant considerations. So that a jury in assessing the weight to be given to the tendency evidence which is relied on to support an inference would consider competing inferences when they are assessing the weight to be given to it. So, we say, a judge would not disregard competing inferences in assessing the probative value of the evidence.

That does not mean that it will not have significant probative value because applying the capacity test, properly understood, a judge might conclude that the evidence has the capacity to significantly affect the probabilities on the basis of the reasoning that the Crown relies on, but not disregarding competing inferences.

FRENCH CJ: Mr Odgers, how long do you expect to be on the last two points? I just you are just dealing with the specifics of the complaint evidence.

MR ODGERS: I have really finished page 2, so I am just going to be dealing with the application of what we have said in principle to the complaint evidence, so I would expect I would be no more than 20 minutes, your Honour.

FRENCH CJ: Yes, all right. We will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

FRENCH CJ: Yes, Mr Odgers.

MR ODGERS: Your Honour, I am on the third page of the outline. The complaint evidence is summarised in the appeal book. I will not take your Honours to that. Our submission is that if her Honour was wrong to assess the probative value of the complaint evidence for the purposes of 137, on the assumption that the complaint evidence would be accepted, and to disregard considerations bearing on the reliability of that complaint evidence then her Honour’s consideration of the issue miscarried.

We say that if the matter had been approached correctly that it would be well open to find that the evidence was of low probative value and outweighed by a danger of unfair prejudice. We have to be able to point to a danger of unfair prejudice and we make that attempt in the outline and the submissions. I will come to that shortly.

Focusing on the question of probative value of the complaint evidence and the assessment of it, we do place considerable weight on the decision of this Court in Papakosmas [1999] HCA 37; 196 CLR 297. Can I take your Honours to that? This decision was the first major decision from the High Court on the Evidence Act 1995 which is, of course, the foundational – the New South Wales Act which is almost identical with the Commonwealth Act and has been amended slightly in 2008 but still found is essentially the same now as it was then and still essentially the same as the Northern Territory Act.

Without going to the various parts of the judgments, a key aspect of the decision of the High Court was that in interpreting the Evidence Act you should not begin with any assumptions about what the common law is, that as a general proposition it was well established that the Act was intended to make significant changes from the common law and that the first consideration must be the words of the provisions and we say we adopt that analysis and that informs to a significant extent our argument.

This case is important because of its actual similarities in some respects and in other respects dissimilarities to the present case. The point I am making is that Papakosmas concerned complaint evidence, and it was complaint evidence which was what was called under the common law fresh complaint. It was complaint made very soon after the alleged offences and in circumstances where consent was in issue it was clearly the case – I am interposing – the proposition that in circumstances where consent was in issue, there being immediate complaint after the incident in circumstances of considerable distress, all of those were factors which, on the face of it, could support a conclusion that the complaint was a reliable one, and also supported an argument as to credibility. The evidence was relevant to support the credibility of the complainant.

The argument that was advanced in the High Court was that section 136 should have been used and that the evidence should have been limited in its use to credibility use alone, rather than reliance for hearsay purposes. To that extent, it is not apposite to the present case, but we do draw assistance from various passages in all of the judgments.

If I could just take you to them sequentially, the first is in the first judgment of the Chief Justice and Justice Hayne at paragraph 40. It was argued that section 136, the discretion to limit use, should have been utilised so that the evidence, notwithstanding the hearsay rule did not apply by reason of section 66, that nonetheless the use should be limited to a credibility use and not a hearsay use of the evidence. That was rejected by the Court unanimously.

Chief Justice Gleeson and Justice Hayne emphasised that just because the common law took that approach, you cannot just transpose that to the operation of the Evidence Act. At paragraph 40, their Honours said:

There may well arise circumstances in which a court, in the exercise of a discretion enlivened by the requirements of justice in the facts and circumstances of the particular case, will see fit to limit the use of complaint evidence, and, in some instances, it may be appropriate to effect that limitation in a manner which corresponds to the previous common law. To assert a general principle of the kind for which the appellant contends, however, would be to subvert the policy of the legislation.

In the instant case, the facts and circumstances surrounding the complaint were not such as to make the use of the evidence for a hearsay purpose either unfairly prejudicial to the appellant, or misleading or confusing. The recency and spontaneity of the complaint, and its consistency with other aspects of the complainant’s appearance and demeanour, meant that it was not unfairly prejudicial. There is nothing to suggest such evidence was either misleading or confusing in its use for a hearsay purpose.

We seek to draw comfort from that passage because it – bearing in mind that section 136 involves a balancing of probative value and dangers of unfair prejudice, the very same concepts that are found in 137 but in the context of a use issue, the point we say – I will withdraw that. It is implicit that their Honours accepted that in assessing the question of probative value of the complaint evidence, it was appropriate to consider such issues as whether or not the complaint was a recent one, or a spontaneous one and other circumstances surrounding it for the purposes of assessing its probative value. That is implicit.

GAGELER J: What has section 136 to do with probative value?

MR ODGERS: I may have made an assumption which is wrong. Sorry, yes, your Honour, it just shows you I had assumed that the words were there and I was wrong. Thank you for pointing that out.

GAGELER J: It was really a question.

MR ODGERS: Yes, it was a very good question, with respect, your Honour.

GAGELER J: Thank you.

BELL J: To the extent that you were reasoning by analogy to 137, it just throws up the confusion that might be thought to be evident in some of the decisions between any discussion of probative value and the second limb of the test.

MR ODGERS: Yes, but I accept that relying on this discussion in the context of 136 does not assist in working out what probative value means in the context of 137 or 97. So I think I have to put that to one side. Thank you, your Honour. That will shorten things.

Papakosmas is, however, useful, I hope, to the appellant because of what Justice McHugh said and I will take your Honours to that. His Honour in his judgment at page 319 under the heading “Relevance” discussed, initially, complaint evidence under the common law. He then turned, at page 320, to the definition of “relevant evidence.” He pointed out at paragraph 76:

Recent complaint evidence or its absence –

I note the word “recent” –

is relevant to, but not decisive of, the credibility of the complainant’s evidence in sexual assault cases –

for the reasons he articulated. Then his Honour said at 77:

In a trial for sexual assault, therefore, ss 55(2)(a) and 56(1) permit evidence to be adduced that, within a reasonable period of the alleged assault, the complainant had told one or more persons that she had been sexually assaulted. Having regard to the terms of s 55(1), it is difficult to see why complaint evidence is not also “relevant” to the issues of consent and intercourse. In almost every conceivable instance of sexual assault, evidence that the victim had complained about the assault at the first reasonable opportunity, would “rationally affect . . . the assessment of the probability of the existence” of intercourse having taken place –

Then his Honour talks about distress in paragraph 78 and then, at paragraph 80, he responded to arguments that had been advanced by the appellant and he emphasised the scheme and terms of the Act and his Honour said:

The scheme and terms of the Act, the Law Reform Commission Reports, which were its basis and the common law rules show that the reliability of out-of-court statements is primarily addressed by the hearsay rule and is not the concern of relevance, a concept that is concerned with logic and experience.

Section 55 itself is the decisive answer to the appellant’s contentions. The words, “if it were accepted” in that section make it clear that a court assesses “the probability of the existence of a fact in issue” on the assumption that the evidence is reliable.

His Honour referred to the Law Reform Commission reports and talked about, over the page:

a threshold test, relevance should require only a logical connection . . . To the extent that other policies of evidence law, such as procedural fairness and reliability, required the strict logic of the relevance rule to be modified, that could best be done by the exclusionary rules - such as the hearsay rule and the credibility rule - and by conferring discretions on the court as in ss 135-137.

So we say that we rely on what his Honour said. He is making the point that relevance was the threshold test that did not import questions of reliability but questions of reliability were intended to be dealt with under the exclusionary rules and the discretions in accordance with the intention of the Law Reform Commission. Then, his Honour, at the top of page 323, in the context of discussing section 66, said:

Unreliability is seen as a problem in s 66 itself because the section makes it a condition of admissibility that “the occurrence of the asserted fact was fresh in the memory” of the person who made the statement. The threat to procedural fairness is also seen as a problem –

and that is dealt with. Then, importantly at 86:

The distinction which the Act makes between relevance and probative value –

We rely on this, of course:

also supports the view that relevance is not concerned with reliability. Probative value is defined in the Dictionary of the Act as being –

and he quotes the definition:

That assessment, of course, would necessarily involve considerations of reliability.

We say we rely on that and we adopt it. We say that that is right. Because the tribunal of fact would inevitably look at considerations of reliability in assessing weight, a judge in assessing probative value as defined would necessarily consider considerations of reliability. His Honour says:

“Probative value” is an important consideration in the exercise of the powers conferred by ss 135 and 137.

We say also 97, 98 and 101:

An assessment of probative value, however, must always depend on the circumstances of the particular case at hand.

We could not agree more and we firmly adopt that proposition. So, his Honour then restates in essence what I have taken your Honours to and summarises it in paragraph 87 and we adopt what his Honour says there.

KIEFEL J: Has his Honour’s statement been accepted by any other member of the Court since?

MR ODGERS: I do not think I can point to an explicit adoption of what his Honour says.

KIEFEL J: The opportunity may not have arisen.

MR ODGERS: It may not have and perhaps this case will be the opportunity. I think it has been understood that there has been a difference between the view of Justice McHugh in this case and the view of Justice Gaudron in Adam.

KIEFEL J: Quite so.

MR ODGERS: I do not think that has ever been – this Court has never really had to resolve it. Lastly, I draw your Honours’ attention to what his Honour said at 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 . . . 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 would endorse that proposition, with respect. If your Honours would just bear with me for one minute, because I am going to go over the page on to 328, but before I get to that I had been somewhat side-tracked by looking at 136. His Honour makes the point, and we rely on it, in the last sentences of 328:

In the circumstances of this case, the complaint evidence was not only relevant to the issues of consent and sexual intercourse but highly probative of the critical issues and likely to be reliable. The case for the Crown was a strong one . . . The only “prejudice” which the appellant suffered as the result of the complaint evidence is that it made what was a strong Crown case an even stronger one.

We say that that was a case where, in the circumstances, his Honour was correct to say that the evidence was strongly probative. But the circumstances of this case are completely different, where the complaint that is made certainly to the grandmother, the aunt and then the following day to the mother were made in circumstances where there was considerable delay, of course, where they were not spontaneous, where there were circumstances which raised questions about motivation and matters of that sort, which were all matters which Justice McHugh would plainly regard as being relevant to the assessment of probative value, and we adopt that analysis.

Can I say, in adopting that analysis, we emphasise that one of the fundamental purposes of 137 is, as I said before lunch, to minimise the risk of miscarriages of justice, to permit judges to exercise a robust gatekeeping function. It is also, we say, to deal with those cases where the courts have an institutional knowledge with respect to particular dangers associated with certain kinds of evidence which, even where juries might receive appropriate warnings, one would not be confident or would be concerned that the jury may have difficulty in taking on board those dangers such as to create a risk of miscarriage of justice and that institutional knowledge informs the application of 137 and, to some extent, 97.

Your Honours, turning then to the next dot point, which is the evidence of SS, very much this turns on a factual question, which is whether or not it was open to conclude that a complaint made to SS was made before or after the complaints made to the grandmother, aunt and mother.

We submit, and it is in the written submissions, that when one reads the evidence of SS there is only one open conclusion, that is, that the complaint was made to her after the complaints made to the relatives. There was confusion on her part as to timing, in the sense of dates and how long ago it was, but we say that when one reads her initial account to the police at AB 529 to 530, she ended up with a proposition that there was only one relevant phone call, and that was after the complaint was made to the mother. When she came to give evidence at the trial she was cross-examined by defence counsel who confirmed with her that there was only one relevant telephone call and that was after she complained to the mother.

KIEFEL J: What did the primary judge and the Court of Criminal Appeal hold about this?

MR ODGERS: The primary judge was not satisfied – I should get the language right. At appeal book 770 - - -

BELL J: At 769, paragraph [40], there is a reference to:

the overwhelming weight of the objective evidence suggesting the complaint to SS occurred at the earlier time - - -

MR ODGERS: Yes. That was a reference, as I understand it, to the various things said by SS as to dates. Her initial statement was that it was after the grandparents had split up, which was sometime before, and then she was asked to put a period of dates on it and she indicated dates which were certainly before the complaints made to the mother. I think that is what her Honour is referring to by way of - - -

GORDON J: It is all set out, is it not, in the preceding paragraph, paragraph [6], where all the facts are set out?

MR ODGERS: Yes, your Honour. We have carefully summarised the evidence in the appeal book at 6.50 to 6.52, and I make the submission that when you read the evidence of SS and then read the cross-examination, and you read the absence of re-examination, there is only one possible conclusion, and that is that whatever the date when the complaint was made – she was uncertain about the date, but there was no ambiguity that it occurred at the time that the complaint was made to the mother. We say that that is the only conclusion that can be drawn. As we said, there was cross-examination which confirmed that and no - - -

BELL J: The absence of re-examination on that issue was the lynchpin of your case on this.

MR ODGERS: It was one factor in that, yes, your Honour, that is true. We submit that it was unfair to put the proposition that there were two phone calls when the evidence to the police was there was only one. That was confirmed in the cross-examination, and there was no attempt made to ask further questions, and then the Crown Prosecutor in final address said there must have been two phone calls. We say that that was unfair. It was a breach of the principle in Browne v Dunn, and that was a factor that should be taken into account. I would not adopt the proposition it was the lynchpin, your Honour.

We would also make the point – and I have put it in the outline, I will not take your Honours to the evidence - that when one reads the complainant’s evidence carefully at those appeal book references, it becomes apparent that she, herself, withdrew the claim that she told SS soon after her grandparents separated. She does change the story to “I told her back in primary school” but, of course, SS said nothing about that. But she withdrew the claim, we say, that she told SS before the conversation at the time she told her mother. So we stand by the proposition. It does not really matter, with respect, what the complainant said. The important thing is that SS, we say, was unqualified in her assertion.

Your Honours, we have relied on various other arguments going to the assessment of probative value. They are contained in the written submissions. This is all in the context of us contending that if the matter was considered afresh by a judge, not making the error of assuming that the complaint evidence would be accepted and, therefore, assuming that it is reliable, that a judge could conclude that the complaint evidence was of low probative value. That only gets us one part of the step. We also have to demonstrate that there was a danger of unfair prejudice.

We have sought to do that by the contention that we have advanced in the written submissions and in the reply that, properly analysed, the complaints were very general in nature such as to essentially constitute evidence of uncharged acts – history of sexual abuse which, properly analysed, should have led to a conclusion that it was essentially permitting the jury to engage in a form of tendency reasoning from the complaint, being true, “He has touched me”. That was the complaint to SS. The complaint to the mother was, “He had been on top of me many, many, many, many, many times” – every day, I think she said.

If the jury acted on the directions they were given, they could rely on that to prove that the truth of those assertions which, while they did not go to the specifics of any charge, would have supported a conclusion that he was somebody who, on a regular basis, sexually abused the complainant which would in turn lead to a real risk of tendency reasoning which was prohibited by reason of section 97 in this case. So no application was ever made to do the evidence for tendency purposes.

GORDON J: There was no application to limit its use either by your side.

MR ODGERS: No, there was not, but this is in the context of an assessment of whether, if the matter had been dealt with properly, probative value had been properly assessed and risks of prejudice considered, then we say that that is a real risk of prejudice which would, if the matter were to be considered again, lead to an outcome where it would be well open to a judge to conclude that the probative value was outweighed by that risk of prejudice.

GORDON J: Your client or your counsel could have made an application under 136 to limit the use to which it was to be put.

MR ODGERS: He could have.

GORDON J: They did not?

MR ODGERS: He did not.

GAGELER J: The question of unfair prejudice is a question of evaluative fact in the circumstances of the particular case.

MR ODGERS: Yes.

GAGELER J: You have a finding against you, do you not, by the trial judge that the evidence, whether or not it had probative value, did not create prejudice?

MR ODGERS: Yes, yes. The judge was satisfied that there was no danger of unfair prejudice.

GAGELER J: So what are you telling us, that the only factual conclusion to which the judge could have come was that there was unfair prejudice?

MR ODGERS: Your Honour, I am not sure I adopt a classification of factual conclusion. The situation was that it was not argued before her Honour that the complaint evidence was of such a level of generality that it was inevitable that it would be used by the jury as a form of tendency evidence. That was not put. So far as I can see it, no clear argument was advanced as to why there was a danger of unfair prejudice. Many arguments were advanced as to why it had low probative value but no coherent argument was advanced as to why it was of low – why there was a danger of unfair prejudice. We have sought - - -

GAGELER J: What does it matter as to the probative value point if there was no unfair prejudice point?

MR ODGERS: Then there is no basis for exclusion under 137. So what I am attempting to do, and perhaps it is doomed to failure, is to submit that this judge erred in concluding that it was of high probative value or whatever her Honour concluded about that or assessing probative value on the assumption that the evidence would be accepted and in disregarding matters going to unreliability that meant that the exercise of the 137 discretion miscarried.

I am now pointing, even though my trial counsel failed to articulate certainly in the way I am doing it, a danger of unfair prejudice. I mean, he attempted to, there is no doubt, of course, because he was relying on 137 and no doubt his arguments were along the lines of - we do not have that material in the appeal book unfortunately but no doubt his arguments were along the lines of there was a danger of the jury giving too much weight to the complaint evidence.

KIEFEL J: Did not her Honour direct against tendency reasoning?

MR ODGERS: What was held in the Court of Criminal Appeal was even if this evidence created the very real risk of tendency reasoning the jury were directed against – not to engage in that earlier in the summing-up and the jury would have understood that to apply. I was going to say in response to that was that as the last dot point in our outline shows there were a series of directions given about certain types of evidence where the jury were told not to engage in tendency reasoning and then the next thing they are told is about evidence where they may engage in tendency reasoning at some length and then the very next set of directions they are given is about the complaint evidence and there is, we say, every risk that the jury would not have understood that directions given about non-tendency reasoning were taken – should be understood by them to apply to the complaint evidence when they are effectively told but there is some stuff you cannot use for tendency, there is some stuff you can use for tendency and now I am going to tell you about complaint evidence and you can use if for whatever weight you see fit.

To infer from that the jury would have understood, well that means that when we consider the weight to give to it and when it involves very general allegations which do not really go to any of the charged offences, but it leads to a conclusion that he had abused her many, many times over the years, we should understand that we cannot use that for tendency reasoning because there was an earlier direction about other evidence in the trial to which this applies.

My submission is that it is most unlikely that the jury would have understood that or more precisely, that there is every risk that they would not have understood that. But I think, with respect, we need to keep separate two questions. One is the ruling on admissibility under 137 and then what happened at the trial in terms of directions.

The argument that is advanced before your Honours under 137 is the evidence was of low probative value for all the reasons that have been articulated and that the judge erred in her assessment of that for the purposes of the 137 exercise and that if the matter were to be relitigated or to be considered afresh in accordance with proper principle, we have pointed to a very real risk of unfair prejudice arising from a tendency use of the evidence which was plainly impermissible.

That meant that when one is considering the balancing exercise - this will be my last submission - that you have complaint evidence which does no more than involve assertions, general assertions that he has touched me and he has done these things many times over the years. It cannot be used for tendency reasoning and it adds nothing to her in-court testimony which was to the same effect that he had done these things many times over the years.

So, we respectfully submit that given the risk of the jury actually using it for tendency purposes, even if they were to be directed not to, which they were not effectively told in any event, there was a strong case for exclusion under 137. May it please the Court.

FRENCH CJ: Thank you, Mr Odgers. Mr Walker.

MR WALKER: May it please the Court. Your Honours, may I start in the order our outline indicates but with this preface to link it to the way in which the argument has developed today so far. Of course, as we put in our written submissions, the provisions in question, now they happen in this case to be particularly sections 97 and 137, but they are, as we know, just a selection from a more populist class to which I will come, but the provisions in question are part of an Act that explicitly, not by assumption or by dubious implication, but explicitly contemplates a number of things which are basal to this argument.

The first has to do with functions of judge and jury and, for that matter, of counsel – that is, examiners and cross-examiners. The second has to do with stages of the trial in relation to what might be called its evidentiary phase: tender, objection, ruling, admission, addresses – sometimes forgotten - directions and warnings, and then deliberations and that staged sequence of a trial in relation to the evidentiary phase obviously includes the allocation of distinct functions, not mixed and not confused functions between judge and jury.

In our submission, there is a fallacy that pervades the main argument against which we contend, on the part of the appellant, because it has introduced, in our submission, an intolerably obscure confusion of function between judge and jury. It is anti-textual because the Act, in fact, is explicitly framed to recognise the established allocation of function and it is anti-textual because it ignores the distinction between the deliberation phase - the assessment of all the evidence and evidence in the context of all the other evidence – from the determination of truly voir dire issues when a matter of contested admissibility is being determined.

May I pick it up in this fashion. We can see in section 165, most explicitly, that there is a species of evidence that “may be unreliable” in the assessment of the trial judge. At the appropriate juncture, which is at the end, there will be a warning. The Act is posited on the basis that unreliability as a possibility - the word “may” means possibility - is a state of affairs which requires a judge then to consider the exercise of a peculiarly judicial power, perhaps duty and it is a warning to a tribunal of fact, the jury, about how they may proceed. It is not a preclusion of the jury from doing so. It is certainly not a withdrawal from the jury, either of the case or of part of the case.

Now, the possibility of unreliability that raises the question – the text does not supply it to us, but that is because it is obvious from the explicit recognition of the allocation of function – the possibility in whose mind or minds, in one sense it is obviously at least partly the possibility has to appear to the judge. Yes, that is true. That is the jurisdictional fact of the 165 power or duty.

But the possibility of unreliability is proleptic so far as the trial judge is concerned, it is looking forward to something which the judge is not going to do. The judge is going to conclude his or her directions to the jury by saying “I have done my part, now you do yours”, harking back to the beginning of the trial where there was probably the civics lecture that said “I am the judge of law, you are the judges of fact”.

In our submission, it is critical in the wording of 165 to understand that the Act, in which 97 and 137 also appear, contemplates that the judge will hand over to the jury, with appropriate warnings about evidence that may be unreliable – that is, that the jury, according to the judge’s assessment of matters, may well regard as unreliable, there being another possibility, that is, they may not regard it as unreliable; they may regard it as a very good piece of evidence – that is for the jury.

The possibility that it may be unreliable is not talking about some platonic universe in which evidence has a status or weight apart from its assessment by a judge or jury; there is no such universe. All the evidence has been assembled ultimately for the deliberation of the jury, and so unreliability is a quality, in the judge’s assessment for 165, that looks forward to what is something as a possibility that should appear to the jury. It is the converse of what is open to the jury.

Well, then, the Act therefore explicitly – we do not require interpolated terms or words in any of the provisions upon which we rely to say that it is explicitly posited in relation to the quality of evidence – in particular, unreliability – on this allocation of functions between judge and jury.

Now we come to the particular provisions. They are not just, of course, 97 and 137. They obviously include 98, which is horse and carriage with 97. They include, very significantly, 101, about which I will have a little bit more to say – mostly, if I may say so, ungraciously picking up on the way my friend dealt with it – and then there is also 136 and 135 to be seen in a broad sense of being cognate with 137.

But principally, and as a fundamental part of our argument, underlying the propositions we have tried to distil in paragraph 1 of our outline is that we are talking about admissibility. We are not talking about final deliberation and because we are talking about admissibility we are talking about the operation together in a sensible scheme of 55, 56 and – in the cases we are dealing with here – 97 or 66, because 55 and 56, particularly 56(1), are, as it were, the one as a grudging recognition of such wisdom as Jeremy Bentham had about the rules of evidence - if it is relevant it is going in, and then the disappointment to the mummy must be that – the important rider is unless we say it is not.

So there is the pattern of relevance, is how it gets in, and if it is relevant it gets in, unless it is excluded, and then frequently the exclusions themselves are expressed by being an exclusion with an exception. As a matter of the policy of the law it is evident from the way in which the Act has been drawn – you do not have to go to travaux préparatoires – it may be useful or instructive to go to the common law, but if there is a contrast, it is different; if it is the same, it is the same. One cannot really draw much from that. One sees that the exceptions are usually couched in terms which do – here, we adopt what my learned friend put – sound in matters of caution against unfairness, or caution against supposed inherent unreliability.

Now, there are other safeguards – 135, 136, 137, 198 – are just some of them. But 55 and 56 are, to use the language of our paragraph 1, a premise of what is occurring when one comes to the section 97 thinking by the judge – forgive the colloquial language but it is an adaptation of the actual language of 97 – if the judge thinks. That comes at a juncture where evidence has come to the point of being tendered. No question under section 97 or any other provision of the Act remains to be attended to if it fails at section 55 and as my learned friend drew to your attention, some of the evidence in question here was tested at the section 55 level, in vain.

Section 55, very significantly, talks about that which is the process of reasoning ultimately by the jury – where there is a jury – the tribunal of fact – because its concern is that which the effect which the evidence in question may rationally have in assessing the probability of a fact in issue. A fact in issue is a term of art that obviously refers to the final conclusions of the trial, here, the jury deliberations.

Although one is bound to say if the words “if accepted” had not appeared in section 55 it would be understood as meaning so, obviously, it is clear that at the point where evidence is being considered for its admissibility by reference to its relevance that logically something can rationally affect the probability of something happening, according to the likes of the drafters of the Evidence Act, at least – only if the evidence is accepted in the sense of being factually correct, which is something that Justice Nettle offered my friend and was accepted, yes, that will suffice.

Another literary phrase would be “truthful and true” by which I mean sincere and correct. There are other possibilities to which I will come but, in our submission, it is clear that, as one would expect for the admissibility stage which is firmly and exclusively in the hands of the judge not the jury, the evidence is being assessed for its fitness to be considered by the jury rather than for what it is bound to persuade the jury.

It is for those reasons, in our submission, that one can, as it were, strip the sequence and the logic of these connected provisions of the Act as follows. Evidence is not before a jury, that is, not part of the material which will contribute to their assessment of the probability of a fact in issue existing unless it is admissible. It is not admissible unless it is relevant. It is not relevant unless, if accepted, it would have the rational effect of affecting the probability of the existence of a fact in issue.

FRENCH CJ: This notion of assessment of a probability of the existence of a fact in issue obviously links up to the later notion of extent of probative value.

MR WALKER: Yes. Assessment includes weighing, to go to another metaphor that is embedded here.

FRENCH CJ: Let me put to – really borrowing in a sense from the example that has been offered by the appellant, you have a witness who says, “It was broad daylight, I have fine eyesight, I was stone-cold sober and I saw the accused walk out of those premises”. That is one kind of test. The alternative is, “It was a foggy night, I’d had a few drinks, I’m a bit short-sighted, but I saw the accused walk out of the premises”.

MR WALKER: That is assuming that the voir dire or otherwise has established that he has ever seen the accused before.

FRENCH CJ: Yes, that is right. There is going to be an identification: “I saw that man”.

MR WALKER: I hope there is not a parade being conducted in the courtroom. “The man in the dock is the man I saw in the mall”.

FRENCH CJ: The point I am making is: does one assume, on your submissions, the factual correctness in each case of the proposition that it was that man who walked out of the premises?

MR WALKER: That is going to depend upon the particular evidence. That is why, when I talk about evidence being sincere and being correct, it is a matter of what the evidence is. Identification evidence is difficult generally but it is also difficult, for example, in this case, but it is a difficulty I am happy to confront. That is because it lends itself to quite often an elided amalgam of conclusion and opinion. “I saw a silhouette that resembled that of the Chief Justice” might be a very ponderous way of saying “I saw your Honour in the street”. Without playing games about the possibility of doppelgangers, the fact is that angles of vision can mean that one could be mistaken. Most of us have had the experience of greeting somebody as an acquaintance who was a stranger.

The evidence being accepted will include all parts of it, so the assertion it was the Chief Justice will come along with “it was a silhouette”. It may also come along with “it was half past six and in winter”. Taking all of that together and assuming jury acceptance – that is, if all that evidence is accepted – you still only have a witness saying, “I saw the Chief Justice”, which is of course not the same as saying, “It is the Chief Justice”. It is still only the witness saying that.

FRENCH CJ: When it comes to assessing probability, which is the process I am looking at for the moment, you look at one set of it – “I know him and I saw him” – and the other is “I saw a silhouette”, your more indefinite example.

MR WALKER: That is right.

FRENCH CJ: The probability of that supporting an inference of a fact in issue or that a fact in issue is established differs between those two by reference to the content of the combination of matters to which the witness has referred.

MR WALKER: That content will include who the witness is, what the witness says about the witness’ perception, what the witness says about the witness’ acquaintance with the person to be identified.

FRENCH CJ: None of that on your submission would involve assessment of weight. It is just the logical effect of the various elements of the testimony.

MR WALKER: Exactly, exactly. We may be the victims of a form of travesty, I am sure unconscious, but let me expose it and refute it. We are not saying that the bad parts of the egg cannot be observed and that the curate has to engage in courteous nonsense. The judge looks at the egg with all its bits and if it is a bad egg, it is a bad egg. If the good bits are only very slight and it cannot be got back without eating the bad bits then this is not going to be evidence with significant probative value.

BELL J: I take it from that that the proposition that in relation to the application of the test, be it under 97 or 137, when one assesses probity of value, one does not do so on the basis of an assumption that the evidence is true in the sense of - - -

MR WALKER: Will support the ultimate fact in issue. That is right. It is true in the sense that the person has truthfully spoken and that they did see what they say but the conclusion that it was the Chief - that is the ultimate fact in issue to which all the other evidence in the case will go.

BELL J: I am not so sure that there is a great distance between you and Mr Odgers on this.

MR WALKER: Your Honour has anticipated a line I was coming to and you will have noticed in our proposition 4 that we have observed even in the exchange of writing that there are points at which the vessels come pretty close. Now, partly that is because of our proposition 2, if you will forgive me for going out of order so as to shorten things at this hour of the afternoon. Of course, there will be cases where the evidence – and I am now using jargon, taken at its highest, that is, accepted and seen in light of the inference proposed to be supported by it in support of the existence of a fact in issue by the Crown nonetheless has inherently, that is, inextricably other aspects to it.

In the trade, this is often summed up as being the evidence is equivocal. Yes, it is consistent with an inference that favours conviction but it is also consistent with an inference that either not so strongly or perhaps not at all supports conviction.

Now, in many such cases we do not have to trouble ourselves with concerns about significant probative value because then there will be a relevance problem because if it is real equivocation then it is going to be difficult to see how it can rationally tend in favour. But there are cases - because we are not being logicians we can talk about degrees of inconsistency - where there are what are called in the cases that have been pressed upon your Honours in writing so-called “competing inferences”. I am not quite sure whether there is really a competition involved but they are arguments that are said to be available in relation to the relevant fact in issue by reference to this argument – this evidence, either on its own or with other evidence.

In our submission, there is nothing wrong at all, assuming that the evidence is accepted in the sense the cases made clear is meant, and then saying, nonetheless, it does not produce anything more than a very small fillip indeed to the Crown case. It does not have significant probative value. It is relevant, 55, but on the same assumption that made it relevant, namely, my judicial consideration of its rational effect upon the existence of a fact in issue, if it is accepted, nonetheless, that is not a significant effect.

It represents the kind of policy of the evolving law of evidence, judicial and parliamentary, whereby, though relevance is a touchstone, it is understood, to use a common metaphor, that there can be peripheral evidence as opposed to central evidence, sometimes a different figure of speech, direct or indirect, and that you can have too much of a good thing. There has to be an end of it and that there will be limits imposed and we do that with rules in relation to credit.

We also have done it with evidence that has dangers and risks, my learned friend has, with respect, correctly put, namely tendency, coincidence, complaint, et cetera, and hearsay, which often, of course, under section 66 will have the principal function of repeating what the main complainant has already said.

It is our submission that there is nothing unworkable in the sense that the provision becomes a dead letter in the approach taken in Shamouil which we have embraced, as you have seen in our written submissions and as we have tried to summarise in propositions 1 and 2 in our outline. It may be, as Justice Bell has put to me, that particularly given some of the concessions made in the written submissions by our learned friends - I am not going to dwell on them, given the time, but we have cited them in our proposition 4. There are elements of paragraphs 6.22 to 6.23 and 6.30 which show clearly our learned friends acknowledging as, with respect, they would be expected to, that there is a difference between the function of a judge and a jury and that this is a decision about admissibility.

In our submission, the large difference between the parties is that there seems to be left, what I called in a matter of intolerable obscurity, an opportunity on the appellant’s argument, which as a matter of law shows that there has been mistrial here. It is an opportunity for a judge to consider matters of truthfulness, cogency of individual items of evidence as well as how it will compare with other bits of evidence, both adduced and to be adduced and to do so, directed that it is wrong to assume that the evidence in question will be accepted.

Now, in our submission, how a judge is meant to do that, having been through the section 55 relevance stage, is really a major puzzle. It leads to the quite extraordinary proposition that a judge will simultaneously think because of section 55 this evidence could affect the assessment of the probability of the existence of the fact in issue, because otherwise it is not relevant, but I do not think it will, at least to a significant extent, and therefore I will not let it go to the jury, who may disagree with me on that last step.

There is nothing in the Evidence Act to suggest that the function of judge and jury has been reallocated between the lines, without any express words, leaving 165 to operate, it would appear, in cases covered by, say, sections 97 and 98, supererogatory. You would never need to give unreliability warnings because if you thought the evidence may be unreliable, on our learned friends’ argument – I stress, on our learned friends’ argument – the judge not making findings of fact, apparently, but is nonetheless, thinking it has insignificant or does not have significant probative value because it comes from a witness whose credit is under attack.

Now, that is an extraordinary proposition. That allocates a function to the parties or their counsel that they somehow effect a disability by making it clear they are going to cross-examine to dispute somebody’s version. That cannot possibly be right.

BELL J: Are you, in this submission, now directing attention to the tendency evidence of the massage incident?

MR WALKER: That is the one that is simplest.

BELL J: Can I raise with you when the test is significant probative value and one is looking at the capacity of the evidence to rationally affect the assessment of the probability of the four offences which are the subject of the complainant’s allegation, so the complainant says, “I was interfered with by my grandfather on A, B, C and D days” and then says, “And he also made some gesture, signifying sexual interest towards me, on day F”, absent some peculiar feature about her evidence of day F, either that there is some independent evidence to support it or there is some inherent feature in the account that gives it such inherent plausibility that different considerations might be engaged - but just looking here, what is it that gets you to a test of significant probative value in that circumstance, unless it is to approach the evidence upon a basis that the truth of the fact must be assumed in relation to the tendered similar fact evidence in terms of its capacity to prove the fact in issue, which depends entirely on acceptance of the truthfulness and reliability of the complainant in relation to the offences that are the subject of the charge? If there is a matter of logic and rationality, how does it help, much less get over the test of “significant”?

MR WALKER: Tendency evidence is contemplated by section 97 to be evidence which can satisfy section 55.

BELL J: Yes.

MR WALKER: I do not need to elaborate on the way in which that is understood. It is not a novel artefact of the Evidence Act. The novel attempt to improve the law, as it was understood to be, was to require as a safeguard – that is, the exception on the exclusion – that the Court think that the evidence will, that is the proleptic, the prediction, have significant probative value, either by itself or, significantly, together with evidence already adduced or evidence that has not been adduced.

As Justice Nettle points out, we do not have to pretend that that is some kind of black mystery because that is not how criminal procedure, as a matter of law, let alone custom, proceeds and, for present purposes, let us say we have depositions, that will do.

BELL J: Accepting all of that, and accepting it is as I have put to you - - -

MR WALKER: I am not suggesting that is an answer to your Honour, it is only a start.

BELL J: But the matter that I am directing attention to, in the context of the facts with which we are concerned here, we know what it is the complainant says in support of the charges that are brought. What gives significant probative value to the fact that she says “and he also, when he had the opportunity, ran his hand up my leg”?

MR WALKER: It is the same factual reasoning. By factual reasoning, I am really now talking about the assessment of which section 55 speaks. It is the same factual reasoning that has, for a very long time at common law and now in the Act, said that what are sometimes called uncharged acts or conduct which may not itself be criminal but is nefarious – what used to be called, neatly, one would have thought as a matter of argument, guilty passion - it is redolent of old-fashioned times but it captured the notion – unaccomplished crime, perhaps, but giveaway signs - now, we use the word “tendency” - it is too late, in our submission, to doubt as a matter of law that such evidence can assist, favourably for the Crown, to persuade a jury of the existence of a fact in issue, namely, the charged offence.

BELL J: I am not for a moment raising with you a question about the capacity of evidence that an accused has a sexual interest in the complainant to support a count charging a sexual offence.

MR WALKER: Yes.

BELL J: What I am raising, in the context where the evidence is “My grandfather used to attempt to have intercourse with me”, of the additional evidence of another occasion - - -

MR WALKER: I see. Yes.

BELL J: - - - from which a clear sexual connotation is drawn. But what is its capacity to significantly - - -

MR WALKER: Your Honour, what I want to separate is significant increment, or significant addition, is not the same as the significant probative value of the evidence in question. It is not to be seen as a caboose. It is a - - -

BELL J: I was not suggesting a caboose. I would just like to know how you would put the significant probative weight of that evidence on the test that you propose.

MR WALKER: The significant probative value comes because the rational likelihood of something as shocking as sexual intercourse with your granddaughter is increased by knowledge, belief on the part of the jury that the person alleged to have done that terrible thing had, on an earlier occasion, run his hand up the thigh in a lascivious manner.

KIEFEL J: Mr Walker, is it of assistance to approach it not so much on a global view of how the jury might put the evidence together, but rather to identify the fact in issue to which the evidence is relevant – namely that he had a sexual interest in the child, and then to say that the evidence shows that he does something which may be explained only by reference to that interest?

MR WALKER: Yes. It depends what one means by “fact in issue”. It is, perhaps mercifully, given the national depravity of humans, that it is not a criminal offence to have a sexual interest that you should not have. It is not a fact in issue that you had a sexual interest, I think - - -

KIEFEL J: In the child.

MR WALKER: In the child. Having a sexual interest is not a - - -

KIEFEL J: I think Mr Odgers has conceded that, as a matter in issue.

MR WALKER: It is very important evidence. It is not an element of the offence.

KIEFEL J: That is what the evidence is directed to, is it not?

MR WALKER: It is a relevant fact. I think I may be quibbling, and unnecessarily, particularly for my case. Is it appropriate to prove sexual interest – yes. If that is enough to make it the fact in issue for the purposes of section 55, then I have nothing further to say, as I earlier did - - -

KIEFEL J: I think Justice Bell’s concern is that it is but another occasion.

MR WALKER: Being but another occasion raises a different issue. There are at least two aspects to it - - -

BELL J: The matter that I am concerned with is the capacity of the evidence of the other occasion to establish as a fact the commission of the offences charged.

MR WALKER: Yes. My answer to that remains – and let me make it clear – yes, the evidence establishes the fact in issue, such it be, of the sexual interest, and that was in contest between the parties. It was relevant, section 55, to prove the sexual interest. The sexual interest was relevant because it rationally affected the likelihood of the other ultimate fact in issue, the sexual offending, which was charged.

GAGELER J: So we have tendency on tendency?

MR WALKER: No, I would prefer not that neat demolition, your Honour. I would rather say – and that is why I made the qualification I did to Justice Kiefel – ultimately, what has to be proved is offending. The existence of sexual interest is a fact that itself is relevant if proved to an assessment of the probability of the sexual offending. That is not tendency on tendency. That is saying there is sexual interest on the one hand, there is ultimate offending on the other hand, though not the same thing one contributes towards assessment of the likelihood of the other and evidence that goes to the first is, therefore, relevant.

BELL J: Does it follow that all evidence touching on uncharged sexual conduct on this analysis would satisfy the test for admission as tendency evidence as distinct from being allowed in on the limited basis of placing the allegations in a context.

MR WALKER: No, it does not mean that at all and for a number of reasons. We certainly – the prosecution certainly does not want to have any part of our argument understood as suggesting that there is carte blanche for uncharged acts, that is, calling them uncharged acts and, as it were, bullying it through and saying, well there are - you cannot leave that out, section 55. There are a number of reasons for that. One of them will be, of course, it is all very well to speak generically about uncharged acts - it still has to answer the relevance question. It still has to be evidence of a kind that could rationally affect the existence of a fact in issue.

BELL J: But I think there was some evidence here of uncharged acts.

MR WALKER: Here there is really no doubt about that and it is conceded by my friend, relevance.

BELL J: But those were not admitted as tendency evidence. I do not think you are contending evidence of that character would be. We are not concerned with the basal test of relevance. Evidence of this character is admitted but it is admitted in order to put the charged acts in a context.

MR WALKER: Yes, and as your Honour says there was that in this case and we are not arguing about it though it, as it were, is here because there was such evidence but it is not in contest here.

BELL J: I understand that but just in terms of principle, if evidence that the – of particular acts by a complainant is accompanied by her account that he had intercourse with me regularly, if that is admitted only as context but one allows the complainant’s account of a particular episode such as the running the hand up the leg because it shows sexual interest, it is a little difficult to see the distinction.

MR WALKER: I agree. In fact, I am bound to observe whether it be against us or not the notion of that being only a matter of context. It would not – does not detract from the, one expects, devastating effect on prospects of acquittal if the evidence is accepted which is one of the reasons why there is, of course, the safeguard in 97 and then, most importantly, the safeguards in 135, 136 and 137. One would expect that responsible defence counsel would put all his or her eggs in the basket of 137 in the case that your Honour is putting to me.

Now, it is was true, you recall, of course, that the phantom alternative to what Justice Bell has been asking about is a trial with 93 charges where they are subject to other considerations. There are certainly no admissibility problems about getting in every one of the 93 episodes. It may be, not in this case but in some future case, it will be for this Court to consider some of the ramifications in terms of fairness on both sides of criminal process in relation to this very common practice of proving alleging uncharged acts, some of which, as your Honours know - - -

KIEFEL J: I think we have attempted that previously.

MR WALKER: I am sorry, your Honour?

KIEFEL J: I think it is called HML.

MR WALKER: I was about to actually give a reference to HML in the answer I had started on to Justice Bell. In our submission – and I do not have to take you to it – but of course HML does make it tolerably plain that there is no categorical prohibition on uncharged acts as admissible evidence. That does for my purposes. Neither is there a categorical stigma attached to it as being evidence that is constitutionally not capable of having significant probative value. That would be contrary to judicial method. It is going to be a matter of assessment, trial by trial, circumstance by circumstance.

So that is why, in answering Justice Bell’s question, the fact that it is an uncharged act does not mean that it is inadmissible. The fact that it is an uncharged act does not mean it cannot be not just context but tendency. The fact that it is an uncharged act does not mean of itself that it cannot have significant probative value.

If we are correct in those propositions, the negatives which among other cases, certainly HML [2008] HCA 16; 235 CLR 334 – quite apart from that – in our submission, that is all we need in our case before we then come to the way in which the actual determination was made, bearing in mind that the argument for a mistrial is based upon the misdirection by the trial judge of herself and repeated as a matter of error in the Court of Criminal Appeal to the effect that the section 55 assumption carried over to the section 97 assessment.

As we have put in proposition 1 and what I have already said this afternoon, of course it does because it has already been accomplished. When one looks at the language of 97 the judge thinks - that is language quite remote from the judge finding as a fact or holding or concluding. The judge thinks, and it is by reference to material, not all of which has been through the mill, and none of which has been through the consideration that comes that the jury is earnestly admonished must be their approach of considering all of it at the end and as it relates each part to the other.

It is for those reasons that the judge thinks the proleptic or predictive nature, the evidence to be adduced, the fact that that means evidence not yet tested, before today what I would have been bold enough to call the unthinkable proposition, we have voir dires at least as long as the trial and possibly longer, because there may be more than one such objection of course, and finally, of course, the critical word “could” to which understandably Chief Justice Spigelman paid considerable attention in the passages we have adequately drawn to attention in our written submissions in Shamouil.

KEANE J: In a case like this where you have the particular evidence of the hand running up the leg and the rather more general, not to say perhaps vague, evidence of the other acts - I mean, it might not be a matter of strict logic but as a matter of experience and perhaps rationality, the other evidence becomes more cogent or could become more cogent in terms of persuading the jury beyond reasonable doubt if there is also evidence of particular incidents.

MR WALKER: Yes, which are ultimately accepted by the jury - - -

KEANE J: Quite.

MR WALKER: - - - and the way to test that possibility at the admissibility stage is to assume acceptance. If accepted, what could they do with it? At its highest, it would not go further than that, or at its highest it could be devastating.

FRENCH CJ: How is the judge applying 97(1)(b):

having regard to other evidence adduced or to be adduced - - -

MR WALKER: One obvious possibility – and it cannot be a complete answer – is that the tendered evidence adds nothing. This comes back to what I attempted in answer to Justice Bell about it is not about being a significant increment. But, in particular, one could say of tendency evidence that does not add anything different in quality or, perhaps, really is part of the same course of conduct, although that might be a bit difficult – that it does not thereby have significant probative value for the fact in issue which would be relevantly either sexual interest or commission of the charged offence. That is one possibility.

Another possibility is that the evidence which is tendered is explained by the same witness, for example, in evidence either that has been adduced or will be adduced in a way, in particular, that may make that which appears innocent sinister. Everyone has been, I think, proceeding – at least my friend’s argument – that it will only be considerations that detract from the cogency for the prosecution of evidence that comes to be considered in this argument but, in our submission, not so.

Patterns may be comprised of episodes which, taken in isolation, might really be either equivocal or lend themselves to an apparently innocent explanation, but, taken with other evidence, may have very significant probative value of a fact in issue being, say, a criminal offending. So, in our submission, those are words most obviously apt to conclude the contextual lending of a sinister light to evidence which, if attended to utterly in isolation, might not appear to be damning for the accused at all.

FRENCH CJ: So they involve just examining, as it were, the rational relationships between the evidence to be tendered and the evidence to be adduced as part of this assessment.

MR WALKER: Yes, that is right, and could I give an example that is germane to this area of criminal trial. Grooming, as I read the materials, often is gradated, and I do not mean to be flippant when I say can start with apparently benevolent acts of indulgence. There is a reason why there is that horrible cliché of candy and kids, and the stranger with a lollipop.

In our submission, it is probably the most usual way in which anxious consideration would be given by a trial judge to evidence to be adduced or that has been adduced, in relation to evidence which is contested as to its admissibility under section 97, that the objecting party seems to have all the good points when one looks at the evidence on its own, but that if you put it in the whole of the case that the Crown wants to make about, say, grooming, the excursion to the zoo ceases to be an educational boon and starts to wear the appearance of the grooming which – taken together with other evidence, which is the hand up the thigh – makes for the, if accepted, very, very weighty evidence indeed in support of conviction. That is my answer to the Chief Justice.

BELL J: But taking a child to the zoo, while it may meet a test of relevance depending on all the facts, does not raise the issues with which we are concerned, because it does not attract a 137 exercise, one would think, nor would it - - -

MR WALKER: I was concentrating certainly on the 97 exercise at that point, yes.

BELL J: Well, 97, evidence of character, reputational conduct, adduced to show a tendency – in this case, a tendency would need to be identified – but conduct of that character - - -

MR WALKER: Can one prove grooming? I would have thought the short answer is yes.

BELL J: I understand your point. You are saying that it would come within “to act in a particular way”?

MR WALKER: Yes, yes, yes.

BELL J: I understand.

MR WALKER: Ingratiating yourself with somebody that adults would not ordinarily mix with, for example. Your Honours, I said I would come to section 101. I ask my friend’s forgiveness if I have misunderstood an argument of his and he will have an opportunity to correct if I was wrong, but I thought I heard today, in my learned friend putting 101 to one side as something which would not trouble the Court because it did not arise as a discrete matter of objection, that it was conceded that if it got to 101 – my words, not his – that there was no objection under 101, it would be satisfied in favour of admissibility. That must be so because otherwise the case would - - -

BELL J: I thought the point being made was that the 101 test is more stringent than 137.

MR WALKER: That is my point. Section 101 is superadded to sections 97 and 98 in the case of crime and it operates thus, even if you have proved the exception to the exclusion, which is section 97.

NETTLE J: Again, it was just doing the decent thing and saying the point was not taken below so you are stuck with 97 and that is the best he could do.

MR WALKER: Yes, and I hope this is not, as it were, a bit of chop logic but we, for our part, cannot understand why it is that if section 101 is understood to be satisfied there could be any objection under section 97.

NETTLE J: No, not that it was satisfied; just that the point was not taken.

MR WALKER: But my friend, I think, went further today and said 101 is met and 101 is the repetition of an exclusion, a fresh exclusion for crime, and then the expression of the exception differently or more stringently, as everyone agrees:

unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

Now, we see there is the absence of the word “unfairly” which I do not think matters because “prejudicial” certainly does not mean simply aiding conviction. So you see it is cognate with 137 and no doubt there is some redundancy of a kind that engineers would regard as good. You have 101 and you have got 137 and, if you like, you have got 135.

In our submission, it really is impossible to understand that if it is accepted that the probative value substantially outweighs any prejudicial effect it may have on the defendant, even if there may be in logical terms room left for that probative value still not to be significant, it is pretty difficult to understand how you could have reached the assessment that probative value substantially outweighs any prejudicial effect and yet the probative value was not significant within the meaning of 97. That is my point. In our submission, it ought to reassure this Court that in this case there has not been a mistrial in relation to that evidence and that is really acknowledged by the approach taken in relation to section 101 by the appellant.

BELL J: Just before you leave the Act, you have made reference to the expression “probative value” as it appears in a number of provisions. Can I just draw attention to 138, which requires the court not to admit evidence that has been improperly or illegally obtained unless the desirability of doing so outweighs the undesirability of admitting evidence obtained in that way. Now, the court, under subsection (3), is to take matters into account. The first is the probative value of the evidence and the second is the importance of the evidence in the proceeding.

MR WALKER: I would not like your Honour to think they are totally separate.

BELL J: That is the matter I am raising with you. What does one draw from that about the meaning of “probative value” and its capacity to establish the probability of a fact in issue and then this separate consideration of the importance of the evidence?

MR WALKER: We draw from that this: this is one of the indications that probative value and significant probative value are not to be assessed in relation to a particular tendered piece of evidence on the basis that one asks what does this add to what is already there or is going to be there, as opposed to what does this do as part of? So you do not say it is the addition and the rest is the body. You just say there will be a body at the end. If this were part of that body of material, would it have significant probative value? Otherwise, of course, you would have arbitrary and illogical decisions, depending upon the sequence of events, in terms of the tender of evidence. One piece of important evidence gets in. Another piece of important evidence is proffered and the judge says, “That does not add anything. You’ve already got one piece of important evidence; you don’t need another one”.

In our submission, it is entirely in the public interest. The prosecution, on behalf of the community, is entitled to say, “One of these items of evidence should be enough to convince you of guilt, ladies and gentlemen, but there are four”. It would be quite contrary to the public interest and the notion of criminal justice for the second, third and fourth in order tendered to be eliminated because they were the second, third and fourth. That is absurd.

GAGELER J: How would you apply that reasoning to an ordinary civil case where section 135 is sought to be invoked - so the judge has heard one bit of evidence and then the second bit of evidence on exactly the same topic? Once the third or fourth comes along why cannot the judge say this is wasting my time?

MR WALKER: Let me say, alas, that is not merely theoretical. Second, the expression is a very measured one - “undue waste of time”. Now, it is possible to suppose in criminal prosecution that there might be Crown cases assembled which begin to - in repetition and perhaps detail - resemble that. Your Honours know in the very area we are arguing about that is one of the reasons that led to the “maintain sexual relationship” offences, not so much that it was an undue waste of time, the notion of saying it is a waste of time to assemble all the evidence against a predator on children is very difficult to maintain but there is an obvious limit.

The limit is undue waste of time and the epithet, in particular, plus the noun “waste” means that one would be chary of applying it in a criminal prosecution where there is no sign of abuse or oppression on the part of the Crown, and it is not suggested here, for example, that one came within cooee of anything like that. Of course, 135(c) will be available even in crime if, to use my example, it is not four but 400 and the offence is not particularly serious and nothing is added after you got to about the 35th repetition.

GAGELER J: All I was suggesting by referring to section 135 is that if you accept that application, whether it be in a civil case or a criminal case, then you are accepting that the probative value of a particular piece of evidence can be assessed by reference to other evidence in the case.

MR WALKER: Yes, both already in and to come. Why are you doing this because, as I understand it, your friend agrees with the expert report and with the assumptions the experts have agreed on in their conference, so why do you have to – which is a real life example. Yes, we accept that and that example I have just given, in particular, would apply in crime where there are agreed facts.

But the mere sequence of events, in our submission, it would be an extreme case which is very difficult to imagine. I have used silly numbers in my last answer to Justice Gageler – it would be a very extreme case in a sexual relationship allegation where the court would even begin to think undue waste of time for serious evidence to be adduced about relevant acts. They would have to be relevant, I stress. I hope that answers that part of that question.

BELL J: Can I inquire just by reference to the discussion of Shamouil by the Court of Criminal Appeal in XY – at page 386, paragraph 97, Justice Simpson, referring to Shamouil, states that in considering an:

objection to evidence invoking s 137, questions of credibility, reliability, or the weight to be attributed to the evidence in question have no part to play in the decision.

Is that the test for which you contend? Justice Basten puts it a little bit differently in a passage which, with amendments, Mr Odgers submitted captured the test. That is at paragraph 48 on page 377. Justice Basten suggested that in conducting the 137 test:

The prosecution is entitled to have its evidence assessed according to its capacity to support the prosecution case, which is not to say that the reliability of the evidence may not be a factor, at least in some cases –

It was in the inclusion of the words “at least in some cases” that the appellant parted company. But it is just not clear to me so far quite where the respondent puts its case in terms of those tests or, perhaps, another one.

MR WALKER: Paragraphs 1 and 2 of our outline are an attempt. May I elaborate that?

BELL J: They do not seem to me to really confront that issue.

MR WALKER: Perhaps one needs to go to the relevant citations. In Shamouil 66 NSWLR 235, if I could just, as it were, pick it up in a preliminary way at paragraph 40 - that is in the earlier part of the Chief Justice’s reasons where the language was:

This Court should determine whether or not a ruling on the admissibility of evidence “substantially weakens” the Crown case –

This is the jurisdictional question:

by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence –

and then the next phrase:

as long as the evidence was fit to be left to the jury.

That looks forward to – presages the part that I am now coming to on the issue in question. The pair of Justices Gaudron and McHugh is noted in the Chief Justice’s paragraphs 53 and 54. Then, in 56, perhaps with some significance given the tortuous course of authority before your Honours, Justice Simpson is cited from Cook.

We, with respect, commend the way in which her Honour, in paragraph [43] of Cook, as quoted in paragraph 56 of Shamouil, expresses the matter – particularly from the third sentence of that extract. Then on top of page 237, there is an example of the preposterous one with the rather – if I may put it this way - - -

KIEFEL J: The limited circumstances that the Chief Justice there says – where credibility and reliability might be taken into account by reference to Justice Simpson – is what Justice Basten is referring to when he says “at least in some cases”?

MR WALKER: Yes, that is how we read it.

KIEFEL J: Yes.

MR WALKER: In our submission, that is then brought to a satisfying resolution in paragraphs 60 and 61, strongly supported by a return to Justice Gaudron in paragraph 62, hence proposition 4 in our outline in this Court.

BELL J: Now, a little earlier - - -

MR WALKER: We have never wed ourselves to the proposition “forget credibility and reliability”. That has all the hallmarks of an absolutist comment that, if expressed by a court, would come to be regretted. Rather, of course, the text of the Act – see section 55 – has you already assuming acceptance for the purpose of examining that which then has its extent to be considered. What is that? That is its probative value. That has already been found. It exists to the point of making it relevant under section 55. Now the question is, is it significant?

In our submission, of course you cannot sensibly depart – there is an air of unreality about the notion of finding something relevant on an assumption and then saying but it has not got significant probative value, because maybe it will not be believed. That, in our submission, is a hobbled reading of the Act and the orderly sequence towards admission.

BELL J: Just coming back to section 137:

the court [is to] refuse to admit evidence . . . if its probative value is outweighed by the danger of unfair prejudice –

There is this weighing process of incommensurables. Somewhat earlier in your submissions, there was reference to the curate’s egg and to the assessment process, as I understood it, for the purpose of this exercise. Is that any part of your submission?

MR WALKER: Yes, absolutely.

BELL J: So what does the court - - -

MR WALKER: You take the whole of the evidence and look at it for what it is worth.

BELL J: Yes, so again we come back to this, do we, on your submission? One is not concerned at all with looking at credibility in the sense of the sincerity of the evidence - - -

MR WALKER: That is right.

BELL J: - - - or matters of reliability that form part and parcel of the witness’ account in the sense of whether or not the witness is a good historian or otherwise - - -

MR WALKER: And are quintessentially for the jury.

BELL J: Yes.

MR WALKER: Which is why 165 exists.

BELL J: But one assesses probative value in a 137 exercise by having regard to the capacity of that evidence, accepting it without examining credibility or reliability in the way the Act defines it - - -

MR WALKER: In that sense, yes.

BELL J: - - - in terms of the probability to establish the fact in issue - - -

MR WALKER: That is right.

BELL J: - - - and the fact in issue would be the elements of the offence in a criminal proceeding?

MR WALKER: Mostly, yes.

BELL J: It would also include those facts that directly establish the fact in issue.

MR WALKER: That is right. No, I do not think that comes to tendency on tendency, but yes, that last point in particular, yes.

GORDON J: Do you accept the rider that Justice Basten and the others have added that notwithstanding what you have just accepted from Justice Bell, there will be the exceptional case where the evidence which is either taken on its own or taken with other evidence is just so improbable that no jury could rationally - - -

MR WALKER: Yes. Yes. I do not think, with respect, that is contrary to what I have accepted from - - -

GORDON J: I am making sure that I understand that you accept that rider.

MR WALKER: Absolutely, that is what we intend to refer to by our specific reference to - in our proposition 2.

FRENCH CJ: That is the sort of limiting case of evidence that is so weightless it floats off the page.

MR WALKER: Yes. Now look, there is a problem logically with all of this and that is that with a lot of that material, it will have failed at 55.

FRENCH CJ: Things collapse into each other a bit.

MR WALKER: They certainly do and if one, forgetting 97 and simply concentrating on 137, my friend touched very briefly on the exciting topic of expert evidence. Well, that is a very good case where, leaving aside 79, there are still 55 problems but the fact that there may be - - -

GORDON J: I am just saying counsel seem not to think so sometimes.

MR WALKER: Yes. The fact that there is a blurring or a danger of blurring, should not disguise the evident sequential relation. Yes, 55 is separate from 97, is separate from 137 but they are connected and that, in our submission, is a key proposition.

GAGELER J: Just so I understand it, Mr Walker, are you saying that a witness can tell a story that is such a tall story that it would not pass a test of relevance in section 55.

MR WALKER: I am not saying that, no. No, I am not talking about florid fantasy as being irrelevant but as it happens, if it could be regarded as florid fantasy of a kind that is not fit to go to the jury, then it would not be relevant because it could not rationally affect the probability, but I cannot think of any case where anything like that has happened.

NETTLE J: Just pausing on that, a florid fantasy, one assumes for the purpose of 55 that it is correct and not a florid fantasy. Is that so?

MR WALKER: I would, your Honour, yes.

NETTLE J: Then one goes to 97 and says, well, it is plainly a florid fantasy and a jury acting rationally could not accept it. Is that the way it is - - -

MR WALKER: If it is tendency evidence, yes. I was actually jumping straight to 137.

NETTLE J: So there is a difference between 55 and 97 of the kind for which Mr Odgers contends, namely that you do, in some circumstances, at least, have regard to credibility even if it is at the level only of florid fantasy?

MR WALKER: As we say, it is not a concession, it is our submission.

NETTLE J: I do not suggest it is.

MR WALKER: I am not suggesting your Honour is. As we point out in our proposition 2, yes, is the answer, yes, certainly.

GAGELER J: How is that consistent with your proposition 4?

MR WALKER: I am sorry, your Honour?

GAGELER J: I thought that the effect of Justice Gaudron’s judgment in Adam was to equate relevance under section 55 to 97.

MR WALKER: No, it is to say that the exercise requires the assumption to be carried through. Her Honour nowhere says that once something is relevant it will have significant probative value for the purposes of section 97.

NETTLE J: Staying with that – start again with the florid fantasy, plain to anyone who is rational but for the purpose of 55 one must assume, must one, that it would be accepted?

MR WALKER: Yes, one would deal with matters of that kind directly by 137.

NETTLE J: What about 97, does that not come first?

MR WALKER: Sorry, if it was tendency evidence - - -

NETTLE J: So, when one comes to 97 one does not assume that it will be accepted, one says that it is so plainly a fantasy that a jury acting rationally could not accept it? Is that it?

MR WALKER: Your Honour, I do not know because if the terms of the florid fantasy were, for example, a description of a satanic mass with the Queen and Boris Yeltsin and Donald Trump, and if all of that is beyond the bounds of credulity it is really very difficult to understand how what might be called the straight-laced, pedestrian world, dealt with by most of us most of the time through the Evidence Act, how it deals with such effusions. I confess, in practice, I have only had it happen once in a court and it all ended in an adjournment upon confusion and such cases settle because there is a medical problem.

KIEFEL J: But mostly such bizarre things would not survive section 55. They would not rationally affect the fact in issue.

MR WALKER: I was about to say I am tempted, notwithstanding, with great respect, the difficulty that Justice Nettle fairly raises against what I have been saying, my intuition at least is that with the inadequacies no doubt displayed by it the best answer is section 55, that is, the content of the evidence may mean that you accept that this person thinks that to be so, but that which is appropriate under judicial notice says it cannot be so and thus it is irrelevant because it could not rationally proceed.

NETTLE J: So you accept its honesty but not necessarily its reliability.

MR WALKER: Because it is absurd, yes. But there must be some things said by people that are just absurd.

NETTLE J: I am sorry to hammer the point, but at 55, at least according to Justice Gaudron, one would accept both the honesty and the reliability of the assertion.

MR WALKER: Her Honour, of course, was not dealing with a scientist who starts off by saying the earth is flat.

NETTLE J: Does one, on your submission, accept both honesty and reliability at the point of 55?

MR WALKER: No, not in the case of the florid fantasy. Ordinarily one does not have to distinguish between that which cannot be true which we know from, if you like, judicial notice and that which might be true, and that is for the jury to determine. The case that we are positing at the moment is a case where everyone knows that this can never be true. No jury could ever accept it. It is not true.

Section 55 is part of an exercise. It is the first step of an exercise where you are assembling material for a jury, material fit for a jury, to consider, weigh up, for an assessment including as to every element of it do I accept this as true and reliable? Where there is material that simply of its character could never satisfy the last of those and as to the first could only satisfy it on the basis of deluded sincerity then, in our submission, perhaps not surprisingly, because these are very extreme examples, the Evidence Act does not cope with it.

FRENCH CJ: It may be that you have a piece of evidence that, as a matter of formal logic, would have a connection to a fact in issue, but it is a limiting case of a character that simply cannot fit within the concept it could rationally affect, I say, a limiting case.

MR WALKER: Yes. What I am striving to do, however, is to repel the notion that evidence impossible to accept – flat earth – shows that section 55, the word “accepted” in the phrase “if accepted”, permits the admissibility determining judge, under section 55, to make his or her own assessment of reliability or credibility. To put it another way, that extreme example – after all, the impossible fact is an oxymoron – is no test of the interpretation of this statute, which is not designed to deal with that which mercifully does not happen very often, at least outside certain expert evidence.

GAGELER J: Mr Walker, then, if we go back to the language of Justice Simpson in Cook, which we were discussing before, as quoted in Shamouil at paragraph 56 where her Honour refers to:

occasions on which the accused’s response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury.

Is it your submission then that evidence of that nature would be evidence that was simply irrelevant under section 55?

MR WALKER: Ultimately, yes, because it is not rationally capable, et cetera – I should not say “ultimately”; I mean “at the threshold”, yes. That does not mean that that might not come, given the sequence of events, in court also to be determined under 137. That is what her Honour had in mind.

GORDON J: Can I ask one other question? A lot of the debate today has gone on about the interaction between 97 and stepping over to 137. Is not the position that it is 97 and 101?

MR WALKER: Yes, it is.

GORDON J: And 137 – its ugly head is interesting, but - - -

MR WALKER: Your Honour anticipates another point I was going to make, which is if we are right about the significance of our learned friends taking no issue with 101, it really is very difficult to see, given its obviously cognate character with 137, how you could ever deploy 137, not least because - - -

BELL J: Well, 137 arises here in relation to the plaintiff?

MR WALKER: Exactly so.

GORDON J: I meant in the context of tendency, I must say. I was talking just about 97.

MR WALKER: So it does not arise in this case. You would never go 55, 97, 101, 137, you would only go to 101. In relation to the complaint evidence, as we understand it, it is accepted that 55 is satisfied. As we understand it, the dispute concerning 66 is what can be summarised as freshness. In our submission, that is a matter which is not usefully addressed by referring to Graham in this Court which, of course, led to the enactment of subsection 66(2)(a), the terms of which ought to be understood as permitting the concept of “fresh” to operate in precisely the way the New South Wales authorities that our learned friend has criticised explained it might be – that is, looking at the nature of the events purportedly recalled or narrated.

Once that is accepted, the main argument against us, being the one that we draw to attention in our proposition 6, apart from the highly particular disputed fact concerning the time sequence to which I am going to come, the main argument against us below and at least in writing here, is concerning what we have called the somewhat generalised nature of the evidence. We have drawn to attention in our written submissions – I will not, given the time, go to it now – the way in which the jury was, with respect, carefully and fairly directed that they would need to consider whether the complaints did refer to - or did encompass, to use my friend’s language – the offending in question and, if so, then it could be used in an unexceptionable fashion.

That is why – again, if I may abbreviate things given the hour – as we have argued in our written submissions, particularly by reference to the directions that your Honours have seen, we give the citations in our proposition 8 - there really is no substance in the proposition that the jury could have thought that outside the support for the offending conduct by evidence of the complaint as complaint of the offending conduct, the jury would give, as it were, some unrestrained and illegitimate tendency use to the complaint evidence if they rejected it on the basis that her Honour explained it could be used.

In our submission, this part of our learned friend’s argument really comes very close to supposing that the jury would not follow the directions given to them about the only way in which the complaint evidence could be used. It is for those reasons that the argument that says that the unexceptionable warning and restriction in relation to tendency evidence – two pages before the otherwise unexceptionable reference to complaint evidence – does not amount to a failure by the judge to give an appropriate warning, far from it.

In truth, once the complaint evidence was plainly described by her Honour as she does, once it is correctly, as her Honour does, confine it to the use that can be made of it if the jury is satisfied it is complaint of the offending conduct, then that is the end of any defect in the summing-up. In our submission, the Court of Criminal Appeal, with respect, was plainly correct in rejecting the notion that the jury could have been in any way misled, let alone to the unfair detriment of the accused in that regard.

That brings us then to the matter of disputed fact concerning which my learned friend was so bold as to say there was only one possible conclusion of fact and it does not matter whether that is voir dire or jury - I think it will make no difference to either his or my argument on the point - namely, that the complaint to the friend could not have been at the time that the Crown submitted it was.

Now, I do not want to rehearse the way in which the Court of Criminal Appeal starting in paragraph [6] and continuing thereafter in Justice Kelly’s reasons demolishes that proposition, if anything, to the extent of almost reversing it. In particular, you will see the telling tally of the event to hospital and marriage breakdown and complaint and the notion that a jury ought not be able to decide for itself what parts of a witness’ evidence is credible and reliable and what is not is totally contrary to the usual way in which a jury is set out at the beginning of its task and sent off at the end of its task to consider all the evidence.

In our submission, that cannot possibly amount to a miscarriage. That was something which was properly within the jury’s grasp and there has been really no attempt at all to grapple with the way Justice Kelly analyses the reasons why the preponderance of the evidence in fact did support that which the Crown argued.

In proposition 9 in relation to section 136 we make a point which we earnestly hope is not seen as unmeritorious from the Crown but this is a jurisdiction either in error or to correct miscarriage and it really is impossible to detect error in failing to do something one is not asked to do and there could not be a serious possibility of a miscarriage in a case where an accused is properly represented arising from the same circumstance. So that though it is persisted in in this Court, section 136, in our submission, should have no part in any holding in favour of the appellant.

Your Honours, that just leaves one matter that I was going to add the reference to HML to. It is our proposition 5. This is another area where it does occur to us, having heard the exchanges today, that there may not be so much difference between the parties. Let me explain. At one stage, I fear, we understood the case we were to meet in relation to that part of the evidence was that simply because it came from the complainant it could not have significant probative value. That is what we meet in our proposition 5.

We understand that is not the case and, in particular, it is not the quality of the witness as complainant, let alone, God forbid, a female or young complainant that produces the argument. Rather, we understand – and here we may be absolutely hand in hand – it is a caution against a bootstraps credibility argument. If it is, then the Crown has no interest whatever in arguing for a bootstraps argument: “You should believe me

about what happened on Wednesday because I am now telling you what happened on Monday”. That is ridiculous and we are not arguing that, of course. But there has never been a rule that uncharged acts which we know can be proved can only be proved by anybody other than the victim of them. That is simply our point. It then becomes a matter for the assessment of the jury as to whether or not such evidence makes more probable the existence of the fact in issue concerning – that is, producing a conclusion about – the offending.

BELL J: If it was an error to admit that the evidence of the massage incident as tendency evidence because it did not meet the statutory test, then evidence was admitted wrongly from the complainant of a furthering of another incident and the jury were given a direction that if they accepted that it could be used by them as some evidence of the commission of each of the offences by way of showing sexual interest.

MR WALKER: Unquestionably.

BELL J: Was it contended and was either the proviso engaged or, on another view, was it put that the admission of this evidence had not constituted a miscarriage of justice?

MR WALKER: I do not think so. No, there was no argument below to that effect and I am bound to point out that the first thing one would, in any event, look askance at in relation to such an argument is whether there were adequate directions and warnings for the alternative use which was not the use to which it was put.

BELL J: That is the very matter. We are not just looking here at the admission of evidence that ought not to have been admitted. We are looking at evidence being admitted for a purpose and directions given.

MR WALKER: Quite so, and I have nothing to say to detract from the significance of that circumstance. Quite so. May it please the Court.

FRENCH CJ: Thank you, Mr Walker. Yes, Mr Odgers.

MR ODGERS: I will try to be as brief as I can. My friend relies on the power of the court – a requirement to give warnings. Where probative value is taken into account and, we say, reliability concerns have not resulted in exclusion because the court is not satisfied, say, under 137 that the probative value is outweighed by danger of unfair prejudice, then it goes without saying that it may be appropriate to give a warning to the jury. The anticipation of giving that warning will be taken into account by the court in applying 137 because it will take into account that the warning is going to be given for the purpose of considering whether or not there is a danger of unfair prejudice. It may well be that the anticipated warning will reduce the danger of unfair prejudice and, therefore, justify admitting the evidence. But, the existence of warnings does not, we say, support any kind of approach which diminishes, or undercuts, or constrains the proper application of 137 and the other provisions that we have been talking about.

I have to confess in respect of the question of what it means to say evidence is assumed to be accurate, my friend, I think – we were talking about the example of a witness says, I saw the accused come out of the door – make some identification. As I understand it, what is put is that properly analysed, that is an opinion that a person came out of the door and it is submitted that it should be assumed that that is truthful and reliable as an opinion in the sense that it is assumed that the person did hold the opinion and it is assumed that he is reliably recounting his opinion but that that is as far as it goes.

So, that seems to suggest - and we are not sure - that you can take into account, for example, reliability concerns relating to whether it was in the dark or whether it was identification of a stranger or there was a short time to observe that that is not caught by the assumption that seems to be the proposition. But it is quite unclear whether or not on that analysis you can take into account that there are reasons to believe that it was a florid fantasy, that is the point that has gone between the Court. We say, you must be allowed to take that into account when you are assessing probative value under 137.

It is not clear whether you can take into account that the witness has a very strong financial interest to implicate the accused or that there is a particular obvious bias or that there are other comparable matters like those referred to by the Australian Law Reform Commission when it talked about reliability concerns. As I understand it, the contention remains that those kinds of matters must be disregarded. Our contention is, as your Honours appreciate, that the judge is not so constrained that all its relevant material to an assessment of weight may be taken into account but in the context of a judgment as to the rational capacity of the evidence to establish a fact in issue.

That leads me to the question that Justice Kiefel asked. We adopt what Mr Walker said, I think, that whether or not the accused had a sexual interest in the complainant is not a fact in issue in the proceeding. What is the fact in issue in the proceeding is whether or not he committed any of the offences charged. Evidence showing a sexual interest will be relevant to that, plainly, but the question would be whether or not the evidence of the uncharged act said to show a sexual interest had significant probative value in proving that the accused committed one or other of the offences charged and our contention is, properly analysed, that test was not met in this case.

Of course, I would just like to make it very clear that we made no concession that 101 was satisfied. Our position was - and it was argued in the Court of Criminal Appeal - it does not appear that 101 was argued in the trial. On that basis, we just ran 97 in the Court of Criminal Appeal and that is all we are running here, but there is certainly no concession that 101 was satisfied in this case.

I think Justice Keane raised with my friend a question relating to the possibility that evidence, for example, from a complainant that there was a massage and a hand was put on the leg might have increased probative value in certain circumstances because of other evidence in the case or something of that sort. We completely accept that proposition at a theoretical level. Indeed, we say that if there were some basis for that the Crown Prosecutor can draw the attention of the judge to it when the question of admissibility is being considered.

But we know now in this trial there were no such circumstances or evidence which would enhance the probative value of the evidence relating to the hand on the leg. The Crown Prosecutor did not even cross-examine the accused about the incident and did not point to any aspect of the evidence which gave it particular weight. It was essentially something that the prosecutor relied on but never put any basis for concluding that it had particular weight when it came to the jury determining the case.

It is not a grooming situation because it occurred six months after the last offence, so you cannot reason to significant probative value on that basis. Grooming might support a conclusion that the evidence has real significance for credibility purposes, but that is not this case because, on the complainant’s account, it occurred six months after the last charged offence and it is difficult to see how it could have been used in any relevant way to show context or credibility purposes. But, at the end of the day, we say that there was no basis shown, and none is evident, on which it could be concluded that it has significant probative value.

Two last points: your Honour Justice Bell raised the question of 138(3). We use that in our favour. We say that, plainly, probative value is not limited to an assessment of importance, that that necessarily flows from the fact that the two concepts are separate. The restrictive approach, however one classifies it, where you assume the evidence is to be accepted – on one view, that really does limit probative value to an assessment of importance in respect of a fact in issue. You assume it is going to be accepted, and then really the only question that remains is how important is it? We say that the existence of 138(3) demonstrates that probative value is not so limited – it is a small factor in that assessment.

Lastly, in respect of the complaint evidence, no challenge was made in the Court of Criminal Appeal to the ruling under section 66 that the assertions in the complaints were fresh in the memory of the complainant, but it is very important to remember the content of those assertions. The assertions were “he has touched me in the past” – that is to SS - I am paraphrasing, your Honours understand – and the other assertion was “many, many times he has touched me and lain on me naked”.

Those assertions can be understood to be fresh in the memory. It is open to conclude that she would have a memory that is fresh, that he had touched her a lot, or that he had done many things a lot. To that extent, it is well open to conclude it is fresh in the memory. We do say that you cannot use that kind of general assertion to encompass the charged offences, because the charged offences – some of them were many years in the past, and there is no basis to conclude that in respect of the specific offences that those were fresh in her memory.

When one is assessing the probative value of the evidence and the use that properly can be made of it, it is permissible, we say, to take into account that it is very general, to the extent that it is said to encompass specific offences, it does not fall within the terms of 66 because it cannot be said there is no basis for concluding that if you assume that it encompasses the specific offences that that assertion related to an event that was fresh in the memory, and that is a matter that goes to the exercise of the 137 discretion. May it please the Court.

FRENCH CJ: Thank you, Mr Odgers. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow morning.

AT 4.34 PM THE MATTER WAS ADJOURNED