R v Dennis Bauer (a pseudonym) (No 2) [2018] HCATrans 111 (13 June 2018)

Last Updated: 13 June 2018

[2018] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M1 of 2018

B e t w e e n -

THE QUEEN

Appellant

and

DENNIS BAUER (A PSEUDONYM) (NO 2)

Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 JUNE 2018, AT 10.22 AM

Copyright in the High Court of Australia

MR B.F. KISSANE, QC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the appellant. (instructed by Solicitor of Public Prosecutions (Vic))

MS C.A. BOSTON: May it please the Court, I appear with my learned friend, MR P.J. SMALLWOOD, on behalf of the respondent. (instructed by Doogue + George)

KIEFEL CJ: Yes, Mr Kissane.

MR KISSANE: Your Honours will have received the appellant’s outline of oral argument. The first ground in relation to this appeal relates to the interpretation of section 381 of the Criminal Procedure Act (Vic), the relevant part of that section is set out in the Court of Appeal’s judgment at page 147 of the core appeal book.

What we say is that the Court below erred in its interpretation of section 381 and the error below that is complained of is the transposition of one of the relevant statutory factors from a consideration of willingness to give evidence and in effect elevating that to the necessity for the prosecution to establish an unwillingness to give evidence. If the Court looks at page 156 of the core appeal book, at line 20 and following, this is the area where - - -

KIEFEL CJ: Which paragraph number is that, Mr Kissane?

MR KISSANE: Paragraph number 42, your Honour, page 156, where the court said:

In our view, the prosecutor’s assertion from the Bar table that RC had a ‘preference’ not to give evidence could not satisfy the pre-condition to admissibility found in s 381(1)(c). Furthermore, the judge was wrong to act on the prosecutor’s assertion from the Bar table. In the absence of any concession from the defence, a proper evidentiary basis was required to establish an absence of ‘willingness’ on the part of the complainant.

We say that it was not necessary for the prosecution to establish an absence of willingness. The test in section 381 is one of interests of justice and if one looks at section 381 what is said there is that:

The court may admit a recording of the evidence of the complainant if it is in the interests of justice to do so, having regard to –

. . .

(c) the availability or willingness of the complainant to give further evidence -

Now, before the trial judge what occurred was that the learned prosecutor indicated to the trial judge that the complainant had a preference not to give evidence. That was referred to by the Court of Appeal but the evidence is also in the appellant’s book of further material at page 74 where the trial prosecutor indicated to the trial judge - in terms of discussing section 381(1)(c) her Honour said:

But she’s otherwise available.

Prosecutor:

She’s otherwise available. She’s had counselling. I can get some evidentiary material if I need to but if the court is prepared for the moment at least to take it from the prosecutor that I’ve conferred with her. Her strong preference, based on advice from counsellors and others is to avoid giving evidence if at all possible. That is her preference.

Now, it is accepted that that is not in the terms of willingness but it is an indication from the trial prosecutor that there is a strong preference of the complainant not to give evidence.

That is then further discussed with defence counsel at page 79 of the applicant’s book of further material where her Honour, in discussions with defence counsel, says:

But the test isn’t as to whether there is going to be stress or trauma occasioned if viva voce evidence is required but a factor to take into account is their willingness to give evidence or not.

Defence counsel then responds:

Of course. And that’s what I was saying, so it just needs to be balanced, Your Honour, because then of course the other consideration, Your Honour, which is of course is a significant – I won’t say the most significant but a significant consideration is that the accused receives a fair trial. And that’s where we come back to the cross-examination that was conducted in the previous trial –

So, what we say is that the court in considering this issue was faced with a statement by defence counsel of a preference not to give evidence. Her Honour was required to consider whether it was in the interests of justice and when defence counsel came to deal with it, defence counsel did not there or at any stage, as I read the trial, then say to her Honour, “Well, we need to have evidence from the complainant about this matter”. Defence counsel then moved on to the issue of the fairness of the cross-examination which was in the previous trial and whether a fair trial could be had as a result of the cross-examination that was recorded in the previous trial. This brings me I think to 1.4.

KIEFEL CJ: So the requirement of there being a fair trial has been seen as meeting the expression “in the interests of justice”, the overarching requirement.

MR KISSANE: That was the argument that was run - - -

KIEFEL CJ: Put by defence counsel.

MR KISSANE: - - - by defence counsel, that there could not be a fair trial if the recording of the evidence from the previous trial was used, so the court then, in our submission, dealt with it on that basis. The ruling of the trial judge, which is in the appellant’s book of further materials at page 233, line 28, her Honour says:

The prosecutor advised that the complainant is available to give evidence but does not wish to do so on the advice of her counsellor with whom she has ongoing therapy. The real question is whether the accused would be unfairly disadvantaged by the admission of the recording.

Then her Honour proceeds to record the argument put by senior counsel on behalf of the accused, the respondent:

Senior counsel, on his behalf, submitted two main reasons . . . It was submitted that on the first trial it was not put to RC that she was lying and allied to that submission it was submitted that with a retrial of a single complainant using evidence recorded on a multi-complainant trail where tenancy -

I presume that means “tendency”:

had been relied on by the Prosecution as being cross-admissible between all complainants. The accused would be at an unfair disadvantage if the cross-examination could not be undertaken afresh.

That was the first submission that her Honour understood defence counsel to be making. The second submission was that there were a number of non-responsive answers within inadmissible material and that was dealt with by way of editing.

Her Honour went on to find that there was very little editing required and that she was of the view that the accused would not be unfairly disadvantaged if the recorded evidence was tendered and so rejected the submission on behalf of defence counsel that it would be unfair to admit the evidence of the complainant from the first trial, bearing in mind that unfairness is one of the matters set out in section 381. In considering the interests of justice, which is the overriding point, the Court has to consider whether the accused would be unfairly disadvantaged by the admission of the recording.

So, what we say and what we submit is that the court at page 156 of the core appeal book where it gives its decision, having discussed what “willingness” means, then elevates one of the matters that her Honour had to have regard to to something that the prosecution has to establish and has to establish on a proper evidentiary basis, whereas we say that was not an issue that was agitated in the trial, and that albeit that the court did not proceed to come to a final view on that ground, we say that the court was wrong to elevate that requirement and that the ruling of the trial judge, which was directed towards the quality of the cross-examination at the first trial and not towards the willingness or otherwise of the complainant to give evidence, ought not have been impeached on the basis of this ground.

It should be noted that the court below assessed the cross-examination of the complainant as her Honour did and the court below found that the cross-examination was performed appropriately and - - -

GORDON J: It was more than that, was it not, it was “conspicuous competence”?

MR KISSANE: “Conspicuous competence”, yes, your Honour, they were the words that I was trying to drag up, but they were the words that the court below found, and so even if we are wrong about our analysis in relation to this ground we say that where really the matter turned on the interests of justice, where the cross-examination was conducted in the way described by the court below, there we would submit, was no substantial miscarriage of justice in relation to this ground, albeit that the court below having found the error that they say was there did not proceed to make a finding about whether they would have ordered a retrial on this ground alone.

So, that is, in our submission, really the argument in a nutshell in relation to ground 1. We say that the court was in error in finding when it was not an issue that there needed to be a proper evidentiary basis to establish an absence of willingness and that the indication to the trial judge by the prosecutor of the complainant’s preference not to give evidence and the reasons that underscored that preference were sufficient to meet the matter set out in section 381(1)(c) which, we say, in any event, is not a precondition to admissibility but simply as the court below said but simply something that needs to be taken into account in assessing the interests of justice.

Now, that brings us to ground 2 which is the ground relating to tendency which, as we indicated in the leave application, was the ground – the reason why we are in this Court. We say that the Court of Appeal erred in its treatment of tendency in what was a single complainant case. So, this ground raises the issue of tendency in a single complainant case and it raises the issue of the cross-admissibility of evidence across charges in relation to an indictment where there were 18 charges on the indictment. We say that the Court of Appeal erred and before I turn to my outline, if I could just indicate in relation to the Court of Appeal judgment at page 179 of the core appeal book the Court of Appeal, having dealt with the evidence - - -

KIEFEL CJ: Which paragraph number is that, Mr Kissane?

MR KISSANE: Sorry, your Honour, paragraph number 80.

KIEFEL CJ: Thank you.

MR KISSANE: The court makes the finding that in relation to RC there was no such additional feature. Now, this is having traversed the areas of this Court’s decision in Hughes, having traversed this Court’s decision in IMM, the court goes on to find that:

No such additional feature was relied upon by the prosecution in the present case.

And at paragraph 82 that:

Furthermore, TB’s evidence [also] lacked any special feature.

What we say is that the court erred in its treatment there of both RC’s evidence and TB’s evidence. We submit that the rulings of the trial judge were correct in the employment of the way in which the judge ruled that tendency reasoning could be employed in this case and that ruling is found in the applicant’s book of further materials. It is ruling number 1, and in that ruling - - -

BELL J: What page in the book of further materials?

MR KISSANE: Yes, your Honour, ruling number 1 starts at page 233 of the book of further materials. Sorry, I am in error. It is ruling number 2. I have moved back to the first ground. Ruling number 2 starts at page 238 of the book of further materials. Her Honour sets out at line 20 - first of all, her Honour deals with the tendency notice starting from line 12 - line 11 of that ruling and the way in which the prosecution put the tendency evidence in this case which was that the respondent was alleged to have a sexual interest in his foster daughter, RC, and a willingness to act on that interest.

Then it was noted in the tendency notice that each act of sexual misconduct and each uncharged act is relied on to show the tendency and to render it more probable that the accused committed the acts charged and the charges are submitted to be cross-admissible with each act – with each uncharged act submitted to be admissible in proof of each charge.

Her Honour then at line 25 sets out the evidence that was actually relied on by the prosecution as evidence showing that the respondent had a sexual interest in his foster daughter and a willingness to act upon it and that is commencing at line 25.

What her Honour sets out is the evidence of the alleged acts in charges 1 and charges 3 to 18 given by RC, the complainant; the evidence of the alleged act in charge 2 which, of course, was an alleged act that related to RC but the evidence of that act was given by TB; and the evidence of other sexual acts alleged to have been perpetrated on RC, not the subject of charges - the uncharged acts, to be given by both RC and TB.

Her Honour then went on to rule that the tendency evidence could be employed in the way requested by the prosecution, that is, for the jury to be able to reason that the accused – the respondent had a sexual interest in RC and a willingness to act upon that sexual interest and her Honour made that ruling.

We say her Honour did not err in doing that. Her Honour relied in the ruling on the Victorian Court of Appeal Case of JLS which was a single complainant case and that case established that the requisite probative value under the Evidence Act was met by demonstrating a sexual interest and a willingness to act on it in relation to a particular complainant.

We say that that line of authority in the Victorian Court of Appeal in JLS, which was relied upon in the case of Thu, in the case of Gentry referred to in our outline, that there is high probative value stemming from the specific tendency of an accused to show a sexual interest in relation to a particular victim.

Now, this form of reasoning which the trial judge used - and there was a question as to whether that has survived as a result of the decision of this Court in IMM but that was the reasoning that was used and we say that in a case of this nature it was appropriate to reason on those lines. What we say is that it was the nature of the relationship that allows that form of reasoning to be used. It was once referred to as “guilty passion” evidence but the term, I think, well and truly now is established that it is “sexual interest” evidence and we say that that form of reasoning was available and was available because of the nature of the relationship that was established by the evidence.

Of course, here there was not only the evidence of RC that was available to establish the sexual interest of the respondent; there was also the evidence of TB, which was evidence that was independent of RC. If one is looking for some kind of special reason to bolster the ability to use this reasoning, then in this case that can be found in the evidence of TB.

We submit that the evidence of TB assists to a significant extent in establishing the respondent’s sexual interest in RC and the willingness of the respondent to act upon it. If there is a requirement and IMM - although IMM was a particular factual scenario – implied that there was a requirement but if there is a requirement for there to be independent evidence to support this form of reasoning then in this case that independent evidence in any event was there because TB gave evidence in relation to charge 2 but also in relation to an uncharged act some two years later.

It was an uncharged act that we accept the Court of Appeal did not think much of but we say that it was an important piece of evidence because it involved TB observing RC with the accused in bed and the motion of moving up and down was observed. TB gave that evidence and we say that that, together with the charged act, meant that albeit that this is a single complainant case, there was supporting evidence that came from another source.

So if one is considering the issue of support for the tendency which we say existed in this case then one is entitled, in our submission, to look at the evidence of TB which was supportive of the evidence of RC and it would have been open to the jury – of course, nobody knows which way the jury reason – but it would have been open to the jury to say, “We’ve heard the evidence from TB, we’ve heard evidence of an uncharged act from TB. We’ve heard evidence of other uncharged acts in relation to RC. We put that together then we can reach the conclusion that the accused had a sexual interest in the complainant and a willingness to act upon that”.

BELL J: Can I just take your attention for a moment to an aspect of the trial judge’s ruling. It is at the appellant’s further materials 244. There is there beginning at line 16 discussion of section 101 of the Act.

If one were to accept for the present that evidence of TB of having seen the appellant place RC’s hand on his penis, and on another occasion when RC was a young child seen the appellant in bed on top of RC, both of those would be matters, taken with RC’s evidence, capable of showing a sexual interest in RC and a tendency to act on it.

But when one comes to consider whether the probative value of TB’s evidence substantially outweighed any prejudicial effect that evidence might have, one is looking, amongst other things, at evidence of a woman around 30 describing her memory of an event when she was four. That might be thought to go to the assessment of probative value.

Her Honour dealt with that at 244, seeming to rely on Chief Justice Gleeson’s analysis in Festa, of the concept of prejudicial evidence in the context of identification evidence and the notorious prejudice that may attach to photographic identification. Is there a more detailed analysis by her Honour of how it was this evidence passed what some might see as the high threshold of 101?

MR KISSANE: As I understand it, her Honour did not go much beyond what she said at page 244.

EDELMAN J: There is also 252, is there not?

MR KISSANE: 252. Her Honour turns back to it and says that she is - at line 20, she talks about probative value outweighing the prejudicial effect and says that she is “satisfied that it does”. And her Honour says that:

Any prejudice is due to the inculpatory nature of the tendency evidence and –

in her Honour’s analysis:

is not unfair prejudice.

NETTLE J: Mr Kissane, the majority in IMM held that reliability is not a relevant consideration in determining probative value for the purposes of section 97. Is it so also for section 101 or is it different there?

MR KISSANE: Well, it left open that - as I understand, IMM left open that question, your Honour, as to whether it was relevant to consider the reliability of the evidence in relation to section 101.

KIEFEL CJ: Did it leave it open? I thought the majority said the judge ruling was required to take the evidence at its highest and therefore matters such as credibility and reliability were not to be considered in relation to admissibility.

MR KISSANE: Yes, and certainly that was said in relation to the section 97 test, your Honour.

BELL J: Section 101 was not considered in IMM.

MR KISSANE: Yes, but we would say that that would be – the same approach ought be taken in relation to section 101, that this evidence ought be taken at its highest.

NETTLE J: Probative value is a defined term. It is a defined term for all the purposes of the Act, so presumably it means the same in 101as it does in 97.

MR KISSANE: Yes.

NETTLE J: Which means it excludes considerations of reliability, dependability and credibility.

MR KISSANE: Yes, and your Honour dissented I think in that point in IMM but - - -

NETTLE J: I was wrong.

MR KISSANE: Yes, and so – but we would say that when consideration of section 101 comes into play, then the evidence ought be taken at its highest and the evidence of TB albeit, as your Honour Justice Bell points out, there was a significant effluxion of time, the evidence, in our submission, taken at its highest, that it did establish those two events occurring, albeit from memory, had significant probative value and - - -

KIEFEL CJ: Did her Honour deal with that issue, such a weight, in her charge to the jury – the weight of TB’s evidence?

MR KISSANE: Her Honour dealt with TB’s evidence but, as I recall her charge, did not comment as to - - -

KIEFEL CJ: It was dealt with in addresses?

MR KISSANE: There was certainly a forensic disadvantage warning given I think in relation to the effluxion of time which to some extent would have dealt with that, but her Honour certainly did not comment on the weight of the evidence because, of course, once the evidence goes in, then it is a matter for the jury as to what weight they give it, subject to any forensic disadvantage warnings that are given or any unreliability warnings that are given.

KIEFEL CJ: But none were asked for?

MR KISSANE: We can check that, your Honour, but my recollection is that none were – that that was not a feature of her Honour’s charge, but we will check that.

GAGELER J: Can I just ask you about an aspect of your earlier submissions about section 97(1)(b)? As I recorded what you said, it was to the effect that the reasoning and conclusion of the trial judge were available. So really my question is just the nature of the appellate review of the trial judge’s conclusion under section 97(1)(b) which in terms refers to what the court thinks. Now, on appeal against conviction under section 276 of the Criminal Procedure Act, what is the question for the appellate court looking at the trial judge’s conclusion under section 97(1)(b)? Is it whether the conclusion was open or available, or is it whether the conclusion is in that court’s thinking the correct conclusion?

MR KISSANE: The ultimate issue, of course, for the Court of Appeal is whether - if there is an error or whether it has resulted in a substantial miscarriage of justice which is the way that section 276 is framed. What I would understand your Honour to be asking is does the court analyse the error in terms of House v King and see whether there was a discretion to admit the evidence was open to the court below and, if it was open, does it then look to see whether any of those classical House v King problems exist in this particular piece of evidence.

I have to say, that tends to be not the way that section 276 is interpreted on appeal. It tends to be that - for the court to look at it afresh, see whether the evidence was admissible and if the court considers it not admissible then it considers whether there has, in fact, been a substantial miscarriage of justice.

So, whilst the court will look at it in a House v King type framework, if it was an interlocutory appeal it tends not to go down that path when considering 276 but rather just to look at it in a global fashion, was this evidence admissible, and if it was inadmissible, if there was an irregularity or an error, did it cause a substantial miscarriage of justice in the trial.

NETTLE J: That is to say, it decides itself whether it was admissible under 97 without regard, as it were, to the trial judge’s determination.

MR KISSANE: Yes. That is the way, as we understand it, section 276 has been interpreted by the – and I am not sure this Court has dealt with that aspect of it, but that is the way it is interpreted by the Court of Appeal.

GAGELER J: Has that been articulated by the Court of Appeal? It was not really clear to me how they were approaching it from the reasons in the present case and perhaps it does not matter.

MR KISSANE: I am sure it has been articulated. I do not have the authority here in front of me, your Honour, but I am sure that is the case, but it certainly does not proceed on a House v King type basis. As his Honour Justice Nettle has indicated, it looks to see if there was – it looks for itself to see if there has been – if the evidence was admissible, if there has been an error.

NETTLE J: My recollection is we took that from the New South Wales Court of Criminal Appeal in the early days of this Evidence Act.

MR KISSANE: Yes, I am indebted to your Honour for that indication. If I could come back to Justice Bell’s question for a moment, what we say is that it was not appropriate for the trial judge in dealing with section 101 to engage in an analysis of the quality of the evidence. The evidence was there, it was required to be taken as its highest and the unfair prejudice that flowed from it in circumstances where charge 2 - - -

BELL J: If I could halt you for a moment there, we are not concerned with unfair prejudice under 137 but we are concerned with the capacity of the evidence to substantially outweigh any prejudicial effect it may have on the accused. That, on one view, is a high threshold and, as I understand it, her Honour was invited in the exercise of the 101(2) discretion to exclude the evidence and it is really a question of where we find that analysis.

MR KISSANE: I am not sure that her Honour analysed it in any great depth but her Honour certainly found in relation to the section 101 point that this evidence did substantially outweigh any prejudicial effect.

NETTLE J: That was because she found there was no prejudice of the relevant kind, that is to say improper prejudice but only proper prejudice in that it tended to convict.

MR KISSANE: Yes.

NETTLE J: Is that not what the reference to Festa is all about at page 244?

MR KISSANE: Yes, and, in our submission, the approach her Honour took was adequate in these circumstances to deal with that issue. So we say that the evidence of TB was certainly capable of not only providing sexual interest reasoning in relation to section 97 but also overcame the hurdle in section 101, the exclusion provision.

Of course, the thing that gave the evidence of TB in relation to the charged act and the uncharged act was that it was from an independent source from RC and so therefore in considering the 101 test was particularly powerful in providing evidence of the kind that we submit was appropriate in this case, that is that the respondent had a sexual interest in the complainant.

GORDON J: Can I just ask two questions to clarify and that is, in relation to the tendency evidence - and it may be that you are going to come to this – I understand your submission that it is sufficient for RC alone, one does not need the TB evidence in relation to this question.

MR KISSANE: Yes.

GORDON J: That is your primary position but in any event, consistent with what is said in IMM, it is a possibility that you can have that sort of relationship but here you have the added additional material - or evidence to be provided by TB.

MR KISSANE: Yes.

GORDON J: Is it the position the trial judge dealt with TB at 244 and then deals with this 101 question in relation to RC at 252 to the same effect – that is, this question about 97 and then 101?

MR KISSANE: Yes, so 244.

GORDON J: Dealing with TB and then 252 deals with RC, the passages Justice Edelman took you to earlier, I think.

MR KISSANE: With respect to 101, I am not sure her Honour was confining that at that point to the evidence of TB. I may be wrong about that.

GORDON J: I think in 252 it is:

Having found that the proposed tendency evidence from RC is of high probative value, I turn to consider whether that probative value outweighs its prejudicial effect.

So 252 is clearly an analysis by the trial judge on that question.

MR KISSANE: In relation to RC?

GORDON J: Correct.

MR KISSANE: Yes, and so her Honour certainly was live to the issue of 101 and deals with it on the basis that the combined effect of the evidence outweighs any prejudicial effect. But it is the case, your Honour, that our primary submission is that TB’s evidence was there and gave support to the sexual interest reasoning.

But the sexual interest reasoning can also be found in the evidence of RC and in a case where there are 18 charges we say that the form of cross-admissibility reasoning that would allow the jury to use the evidence of RC in relation to the sexual interest reasoning may have to be satisfied of the particular evidence of RC that they are dealing with - if it is an uncharged act it is okay; if it is a charged act, they may have to be satisfied of that charged act but they can use that as part of the evidence that sought to establish the tendency reasoning.

The way that ultimately it was left to the jury can be found compendiously in her Honour’s charge which is in the core appeal book at page 15. Well, there are three references in the core appeal book in relation to her Honour’s directions in relation to the use of tendency evidence. The first one is at page 15 where it said that:

The prosecution relies on the whole of the evidence of the alleged acts in each charge and the evidence of other sexual acts which are not the subject of charges to submit that [the jury] should reach the conclusion that [Mr Bauer] had a sexual interest in [RC], and he was willing to give effect to that sexual interest on the occasions alleged in each charge.

Her Honour deals with it in much fuller detail starting at the top of page 25 where her Honour refers to really the way that the “sexual interest” evidence is used, and that is as a piece of circumstantial evidence to support RC and her Honour deals with the area of support relating to sexual interest reasoning and at the bottom of page 25 her Honour sets out the evidence that the Crown relied on in relation to the sexual interest reasoning which was the evidence given by both RC and TB:

the alleged acts given by [RC] about Charge 1, and charges 3 through to 18; the evidence of the alleged act in Charge 2 given by [TB]; and evidence of other sexual misconduct not the subject of the charges, given by both [RC] and [TB]. These other acts were spelt out by [the learned prosecutor] in his address.

Her Honour directed the jury at page 27 as to how they could use that evidence. The respondent:

had an ongoing sexual interest in [RC], you may use that conclusion to reason that the offence alleged in the particular charge you are considering is more likely to have occurred, and use that as part of your decision as to whether you are satisfied beyond reasonable doubt that the alleged act in the charge actually occurred, based on the direct evidence of that act.

Her Honour put it slightly differently at page 55 where her Honour said that:

[RC] also gave evidence of a number of other alleged acts of misconduct that were not subject to charges. That evidence, if accepted, goes to proving that the accused had a tendency to have a sexual interest in [RC] and that he was prepared to act on that interest. That then can be used when considering each charge individually and makes it more likely that the accused committed that act. That same reasoning applies if it is proven that the accused committed any of the charged acts.

So, if the jury was satisfied that the accused had committed any of the charged acts, then that could be added to their consideration of sexual interest and tendency reasoning.

So, to come back to Justice Gordon’s question, we say that this was a case where there were 18 charges on the indictment. It was open to the jury and her Honour left it open to the jury to reason as to cross-admissibility effectively in relation to these charges and so if the jury was satisfied of any one of the charges then that became part of the evidence that could be used in establishing the sexual interest.

We say that that form of reasoning can be used – that form of cross-admissibility reasoning can be used even in circumstances where there is no particular piece of independent evidence. So where there are, as here, a number of charges that are before the court, if the jury is satisfied of any one of those charges then that in itself can form the basis of tendency reasoning, that is, that having been satisfied of any one of those charges makes it, when considering another charge, more likely that the accused has committed that other charge.

Now, obviously, in a hypothetical circumstance where the jury might consider a particular charge to be stronger for various reasons it may have a particular ring of truth about it. It may be that the particular charge has a considerable number of details attached to it such that a jury says, well, yes, we are satisfied of that charge. We put that together with the other evidence and we are satisfied that this accuser we are dealing with had a sexual interest in the complainant and a willingness to act on it.

In our submission, that is the form of reasoning that was employed by the Court of Appeal in the New South Wales case of R v Versi which came on appeal to special leave in this Court before an enlarged Bench. But that Court of Criminal Appeal in New South Wales, albeit that in Versi there was some coincidence evidence from - SD1 was the initials used in that case - that was said to assist in the reasoning, the court in Versi, in our submission, found that it was appropriate for the jury to be directed that they could reason if they were satisfied of one charge - and in New South Wales that requirement was satisfaction beyond reasonable doubt - but if they were satisfied of one charge to that level then they could use that as when they were considering another charge as going to the probabilities that that charge occurred.

That is really using the same form of reasoning, that is, sexual interest reasoning having found that one charge occurred and being satisfied of that then, in our submission, it is open to then engage in that form of reasoning.

So that is why, coming back again to Justice Gordon’s question, that is why we say that it is not strictly necessary in every case, and I think IMM accepted that it was not strictly necessary in every case for there to be some independent evidence or special reason. But in a case where one deals with a large number of offences, that reasoning can come from those offences themselves once a jury reaches a state of satisfaction in relation to that particular argument.

EDELMAN J: That point really is the text of 97(1)(b), is it not? It is either by itself or having regard to other evidence to be adduced.

MR KISSANE: Yes, and so once there is a state of satisfaction in relation to other evidence, then albeit that that evidence may be a charged act, then one can then engage in - that can then be relevant in relation to sexual interest reasoning, both at the admissibility stage and then of course once the jury comes to consider the evidence before it.

Her Honour in directing the jury directed them that they could include the charged acts in the sexual interest reasoning if they were obviously, in relation to the charged acts, satisfied that they had been committed. That is the form of reasoning that particularly Adams J in R v Versi at paragraph 128 in his judgment effectively said that once the applicant’s guilt on any count is established then that can be used as going to the tendency and as part of the circumstantial case in relation to the other charges.

So we rely on what is said in that decision for the proposition that it is - in a case of this kind where there are 18 charges it would be completely unrealistic, in our submission, to expect a jury to reason - obviously they have to start somewhere - once they reason to a state of satisfaction in relation to one or more of the charges then that evidence must be relevant, in our submission, in relation to considering the probabilities that the accused has engaged in the behaviour in relation to the charged act that they are considering.

It is the sort of cross-admissibility that, in our submission, Justice Nettle was referring to in Hughes when he dealt with – when your Honour dealt with AK I think it was in relation to charges 7 and 9 and said that those charges were cross-admissible.

In our submission once one is dealing with a large body of charges, then the jury ought then – it becomes relevant as to whether those charges are cross-admissible. In our submission, here they were and once the jury is satisfied in any one of them, then that can be used as a form of – as part of the tendency to have a sexual interest in the complainant.

So, we say that this charge – this indictment and this form of reasoning is significantly different from the factual scenario that was dealt with in IMM where there was one, in effect, uncharged act which was said to form the basis of tendency reasoning in relation to the charged acts. We say this case is different for a number of reasons from IMM, firstly, simply because of the number of charges involved, the period of time over which the offending is said to have occurred.

There were a number of uncharged acts which were set out. They do not actually find their way into the charge, her Honour just refers to the uncharged acts that the prosecutor refers to, but they have found their way into the – I can find the reference to that in due course, but the uncharged acts were not insignificant. They, for example, involved showing the complainant pornographic videos and asking her to act out what was on those videos and that occurred, she said, over a significant period of time, a 10-year-period in relation to the offending.

There were other uncharged acts that were referred to. That all formed the body of evidence that could be used as part of the sexual interest reasoning and then, of course, on top of that there is the evidence of TB which goes to charge 2 and another uncharged act which is also independent – which is independent of RC. So, all of those matters taken together, in our submission, make this a case that is significantly different from the scenario that this Court was faced with in IMM where there was one uncharged act said to have significant probative value in relation to the charged acts.

NETTLE J: I suppose that was also different in that it came after all the others that were last of all.

MR KISSANE: It was last of all and it was a charge that - it was an allegation potentially seen in a more minor key than the charged allegations. As I read IMM, there does not seem to have been any argument that was put in IMM about the cross-admissibility of the charges and what that uncharged act added to that cross-admissibility which may have been in argument but the trial was not - in that case, was not conducted in the way this trial was where there was cross-admissibility across the charges, and so that in relation to IMM was a charged act and this Court found that that did not have significant probative value so did not even make the section 97 test.

BELL J: On one view, a number of members of the Court came to that conclusion for the rather simple and obvious point that a person whose credibility in relation to allegations of a sexual nature is the central issue at the trial, it does not significantly assist in the resolution of that critical issue to know that they have made a like allegation as distinct from a case such as this where you have some independent evidence tending to support a conclusion as to the tendency in question.

Each case has to be looked at on its own. IMM was not laying down a rule that one can never adduce tendency evidence of sexual interest in a case involving a single complainant but that frequently it will not reach the level of significant probative value.

MR KISSANE: Yes, and we say that this case is different from that in that this is not a case where there was only one uncharged act that, as Justice Nettle pointed out, occurred afterwards, but this is a case where there was a whole body of evidence. There was the evidence from TB as your Honour points out, but there were also other uncharged acts that were said to be part of this tendency.

BELL J: Conceivably, depending on ground 4 going to the evidence of complaint, but plainly there was some significance to RC’s evidence relating to being shown pornographic videos.

MR KISSANE: Yes, and she said that that had occurred over the time of the offending so that was something that was going on not just at the early stage but throughout the offending. It might be convenient if I take the Court to the – it is found in the respondent’s book of further material at page 187. This is the prosecutor’s final address.

Her Honour refers to this in the charge and does not repeat it but what occurs at this page is that the learned prosecutor sets out the other uncharged acts. At lines 2 to 6 he talks about other alleged misconduct and talks about it happening all the time. If you remember there was the Port Macquarie incident which, of course, was not charged because it was out of the jurisdiction so there is no charge for that. Then further down at line 16:

Did he have a tendency to have a sexual interest? Not just by sexual acts. Things he said. Peeking in through doors. Touching her all the time. The things that she’s told you about. But not necessarily subject to charge.

He also refers to, if I can find it, over at page 194, line 5:

You remember her evidence, it was quite detailed at the early part of her evidence . . . about him having pornographic videos and how he had her watch them and then engage in sexual activity that was being depicted on those videos.

So, there was a body of uncharged acts and then the prosecutor goes on to talk about the support in relation to those pornographic videos from the evidence of complaint from AF.

BELL J: Just while we are looking at uncharged acts, can I raise with you one aspect of the Court of Appeal’s analysis? It begins at core appeal book 171 and goes over to 172, paragraph 68. The court commences by talking of section 97 which, of course, is concerned with tendency evidence but then their Honours refer to the fact that evidence of uncharged acts in sexual cases has often been recognised as evidence that tends to explain the relationship between the parties or sometimes one might say it puts evidence in context.

It is just not clear to me whether the court is distinguishing, as some might think conventional, between evidence that is adduced of uncharged acts that have a sexual colour to them that are led simply in order to explain the complainant’s evidence but that are not the subject of tendency directions because they are not adduced for that purpose and evidence that meets the test in 97 and 101 in relation to tendency evidence. Do you accept that there is a distinction between the two or are you suggesting all uncharged acts are relevantly evidence of tendency to have a sexual interest in a complainant?

MR KISSANE: We would accept there is a difference between the two, that evidence of uncharged acts can be led for context - actually one is called “context in relationship” evidence.

NETTLE J: It was a 3/3 split in HML about it.

MR KISSANE: Yes, that is right, your Honour, and it was also split as to the burden that applied in relation to those matters but - - -

NETTLE J: It goes to both, does it not? It goes both to tendency and also to context.

MR KISSANE: Yes, I think that is right, your Honour. What I think the Court of Appeal in Victoria tends – and I think the New South Wales Court of Appeal is probably similar, tends to take the concept of sexual interest which is guilty passion, as tendency rather than context and where it is led solely as context would actually probably require an anti-tendency direction to be given so that if it is led simply to set the background or to provide evidence that this did not occur out of the blue or matters of – that are traditionally in that context area then in Victoria there would almost inevitably be an anti-tendency direction given.

We submit that it has in fact become much more common for sexual interest reasoning to be considered to be tendency reasoning. There is a suggestion that if it is only led as to sexual interest and not a willingness to act on it then that can come – if there is no willingness to act on it as part of it then that can come under the context evidence.

In New South Wales there were, in the early days of the Evidence Act, there were cases relating to motive and the like that showing a sexual interest showed a motive to commit the offences which did not engage tendency reasoning. But we submit that although it clearly is, as Justice Nettle points out, admissible for context and for tendency - and here her Honour did give directions in relation to its use as context evidence.

BELL J: Well, there are two things there, are there not: one, the admissibility depends on a threshold test that ultimately is quite high in relation to tendency evidence, and the requirement of judicial directions as to the use to be made of tendency evidence is an important determinant. It is necessary to understand what the basis of evidence of uncharged acts is.

MR KISSANE: But by framing, and I think this is the way that it seems to now be framed, by framing evidence of what used to be called guilty passion or relationship evidence which - as tendency evidence rather than context evidence means that it actually has to get over that higher hurdle. Perhaps it did when this Court considered HML and was dealing with a common law and dealt with it in terms of context and relationship evidence, albeit that I think as Justice Nettle points out, three of the judges in HML effectively found that it was propensity evidence.

But our submission is that as things now stand, it seems to be much more settled that when one is talking about a sexual interest in a complainant and a willingness to act upon it, that that is evidence that shows a tendency rather than simply matters of context, context that - - -

BELL J: Yes.

MR KISSANE: So we accept that this evidence was – it was required that it meet that higher hurdle of tendency evidence, but we say that that is – that is met in a single complainant case much more readily because we are talking about a sexual interest in the one complainant. There is no attempt to use it as a sexual interest in relation to children or particular children. It is a sexual interest in the one complainant. So we submit that it is easier therefore to – in a case of this nature to get over the sections 97, 101 hurdles and have the evidence admitted for the reasons that the trial judge set out.

Of course, that brings me around, in a circular way, back to all of the matters that we say can be used which are significant to support the argument that this evidence has, in combination, taking all of the evidence into account, significant probative value which outweighs any substantial prejudicial effect. Now, although I have moved from my outline, I think I probably have covered most of what I wish to say in relation to tendency evidence. Ground 3, of course, is allied with ground 2.

KIEFEL CJ: If you are right about ground 2, there is no question of severance.

MR KISSANE: That is the case, your Honour, and if we are wrong about ground 2 - - -

KIEFEL CJ: You say that a strong direction would cover the - - -

MR KISSANE: Yes. A strong separate consideration direction would cover it but really we accept that the argument in relation to ground 3 is aligned with ground 2, which brings us to ground 4, which is the complaint evidence in this case.

We say that this evidence was capable of being used as complaint evidence. We accept that it is a bit hard to be precise as to the exact timing of it but a complaint was made to AF, it seems not a great deal of time after RC moved away, moved into the house that AF was staying in. So it is a complaint that we say is made, relatively speaking, close to the end of the period of sexual offending. December 1998 was when the complainant moved out and the complaint to AF - she moved in with AF it seems in January and the complaint was made within a short period of time.

So we submit that this evidence was capable of meeting the test in section 66 of the Evidence Act, that it was capable of being fresh in the memory of the complainant, and we say that this was not a case like the one that the Court of Appeal considered of Pate v The Queen where there was a gap of 12 years between the end of the offending and the complaint being made.

We say that the Court of Appeal was correct in this that in determining whether the occurrence of a representation is fresh in the memory of a person – the test is found at page 188 of the core appeal book in the Court of Appeal’s decision - that it is necessary to take into account all of the matters that are considered relevant, including the nature of the event, the age and health of the person and the period of time between the occurrence of the asserted fact and the making of the representation, and that section 66(2A) of course was introduced as the note in the Act indicates in response to the decision of the High Court in Graham v The Queen.

We submit that in this case the evidence was capable of being fresh in the memory, albeit that it related to events that occurred over a significant period of time. We submit that there is a compounding effect that occurs when allegations of sexual abuse are made over a significant period of time and that this is not a case where somebody is trying to remember something that occurred 12 or more years earlier, but something that has been repeated over a lengthy timeframe and that that has a compounding effect such that when complaint is made at the end of that period it is capable of being, in our submission, seen as being fresh in the memory of the complainant.

I took the Court just before to the – I think I stopped at the point at – this is in the respondent’s further book of materials, at page 194 - - -

GORDON J: Sorry, I missed that page number, could you just give it to me again please.

MR KISSANE: Page 194, your Honour, where the prosecutor talks about the complaint – talks about that AF was crying at line 15 and she then moves on to complain about the pornographic videos and he relies on that as evidence of consistency in her complaint which seemed to be the main way the prosecutor put the evidence to the jury, albeit that the trial judge, it is conceded, left the evidence in accordance with Papakosmas that it went both to credibility and as some evidence of the happening of the events.

We say that the evidence that was given by the complainant was not such that it should have been excluded. The Court of Appeal made much of the way that the evidence was elicited from the complainant as being part of what was described as a “guessing game”. We say that there was no more than questions to which the complainant responded, yes or no, in circumstances, of course, where somebody is making representations about matters that are, ordinary human experience would indicate, difficult to talk about and difficult to make representations about that there was nothing inherently lacking in the way that the evidence was given.

And, in addition, of course, the evidence was that the complainant volunteered that the evidence about the pornographic videos – that part seems to have been not the result of questioning but seems to have been volunteered and she confirmed that in re-examination that that was something that had been volunteered.

So, we say that the evidence was capable of being fresh in the memory and that the Court of Appeal erred in its approach. Its approach seems to have been, if one goes to page 190 of the core appeal book – seems to be one of requiring that there be evidence that the occurrence of the asserted fact was fresh in the memory of RC at the time. That is at paragraph 112.

We say that in the ordinary course of events, whether a representation of this nature is admissible or not would ordinarily be something of inference from the circumstances surrounding the representation and that it would be unusual for a complainant to put forward what would essentially be an opinion that this was fresh in the memory as opposed to a court looking at the surrounding circumstances.

We say that the Court of Appeal erred in requiring that there be evidence beyond the evidence of when the complaint was made and the circumstances in which it was made but there be evidence that the asserted representation was fresh in the memory of the complainant.

The other matter that the Court of Appeal considered important in that paragraph was that the representation was generic and non-specific as to activity but we say that is hardly surprising when one is making a representation to in effect a girlfriend in circumstances where the offending had proceeded over a lengthy period of time. One would expect that the representation would be to some extent generic and non-specific simply because of the number of events that were involved and the considerable period over which the events took place.

Of course, once the evidence is fresh in the memory, in our submission, it then is relevant evidence to put before the jury. There is no higher test in relation to complaint evidence. It would be admissible if it was relevant, subject to the discretion in section 137, which the Court of Appeal also dealt with, to exclude the evidence if its probative value was outweighed by the risk of unfair prejudice.

We say that in circumstances where this is really a representation about charged acts where a complainant has given a significant amount of evidence about 18 charges that the possible misuse of the evidence is, in our submission, at a minimum.

NETTLE J: The Court of Appeal seemed to put it more on the basis that it lacked probative value rather than being productive of improper prejudice.

MR KISSANE: Yes, and that was – and in a sense I have dealt with that, your Honour, because they said it was the product of a guessing game which was, in our submission, really no more than question and answers eliciting the evidence but there was also evidence that came from the complainant, so we - - -

NETTLE J: I suppose it also brings us back to this question of probative value that was touched on under section 101 in view of the majority’s decision in IMM.

MR KISSANE: So here, in our submission, it would be required to be taken – the evidence would be required to be taken at its highest and not assessed as lacking in probative value because of the way the evidence was elicited as long as the evidence was there and was relevant and met the threshold test, in this case, of “fresh in the memory” then, in our submission, it was admissible. It was not, to the extent that the Court appears to be making an assessment of its own probative value, we would say that that is inconsistent with IMM.

EDELMAN J: Is it an all or nothing question here? In other words, is section 66(2A) a section that applies to these circumstances either to encompass all of the events as being about which evidence was given as being fresh in the memory or potentially some of them?

MR KISSANE: In our submission, it would be admissible even if it related to some of them, it would not necessarily need to encompass all of them. The representation – for example, if there was a representation at the end of the period that quite obviously related to the last act and was specific enough to relate to that last act then that would be admissible.

EDELMAN J: But what about then earlier acts that are spoken of?

MR KISSANE: It may not – I mean, it may be necessary to if it is that specific to limit the use of evidence so if it is specifically about the last act and specifically was a representation about that then one could envisage a direction that made it admissible in relation to that act.

NETTLE J: The section 136 direction?

MR KISSANE: Yes, in the sense that - it may not even need to be section 136 in the sense that that would be the act that it is relevant for. So, it is submitted as relevant to that last act and not to the other acts so there would be a limiting direction that flows from the section 55 issue of relevance. So, it would be open for representations to be admissible only in relation to part of the period or part of the allegations that are made. But, in this case, what we say is that this was a generic complaint that was not directed towards any particular act but was related to the overall offending, this is what - - -

EDELMAN J: So if one looked at paragraph 103 of the Court of Appeal’s decision at page 186 of the appeal book, then the evidence that is described in that paragraph you say is all evidence within section 66 of the occurrence of a single asserted fact?

MR KISSANE: No, it is evidence within section 66 that a series of events occurred.

EDELMAN J: Would the question then need to be whether for each of those events they were each fresh in the memory or was it simply argued as a binary issue?

MR KISSANE: It was argued as an overall issue; it was not split up in the way that your Honour says or is suggesting it might have been. It was simply done as at the end of the period there was a complaint made and so the generic nature of it would be one that may well be relevant to the weight that a jury attaches to it but, in our submission, it would not make it inadmissible as evidence of a representation.

In the way that it came out, it does not just refer to one act; it refers to a number of acts. It refers to the watching of pornographic videos and making her act out what was done in those videos, which was in fact a general uncharged act which she talked about which occurred - which the complainant said occurred over the period.

We say that that was capable of meeting the test in section 66(2) and (2A) as being fresh in the memory and that it was not done in this case to say that this was admissible in relation to this charge because it detailed the particular event that occurred in this charge but not in relation to the other charges.

In my submission, if one analyses it as a piece of circumstantial evidence –and we say that is what it was, it was a piece of circumstantial evidence that was capable of supporting the complainant’s evidence, then there was no requirement to specifically say it had to relate to charge 12 or charge 14, or whatever, as the case may be.

It was a general piece of circumstantial evidence about a representation made at the end about offending that could only be seen as fresh in a person’s memory, and it will be not the sort of thing that one forgets, and it was evidence that could be used in that general sort of way that circumstantial evidence is used in supporting the other evidence that relates to the case.

So here the complainant gave evidence about each specific charge. It would be unusual for, in a case of this nature where there is a large number of charges, for complaint evidence to ever be about a particular charge in that sequence of events. It would usually be of a general nature complaining that the accused, whoever he or she may be, is doing this to me, in a general way and that would be the usual way that complaint evidence - - -

BELL J: But it is not really circumstantial evidence. Under 66, evidence of the previous representation is being received with respect to proof of the asserted fact, is it not?

MR KISSANE: Yes, it goes in as proof of the asserted fact.

BELL J: And the asserted fact here seems to be a number of things. There is an asserted fact that the appellant made RC watch pornographic videos and made her act out what was done and an asserted fact that she sucked him off and so forth. I just do not understand the contention that it is some sort of circumstantial evidence that is admissible at large - I mean there is a purpose for leading - - -

MR KISSANE: Yes. It becomes evidence of - some evidence of the charge and evidence going to – some evidence going to consistency. So maybe “circumstantial” is the wrong word but once it is admitted then it becomes evidence that, for example, assists in, as circumstantial evidence sometimes does, assessing the credibility of the person who made the representation.

So, in our submission, each of those asserted facts that are referred to have some role to play in assessing overall the ultimate issue in the trial which is the credibility. They do not necessarily have to go directly to a particular charge but they show overall consistency of the complainant and provide some evidence that these allegations occurred in relation to her. Unless there are any further questions of us about that ground, I think that concludes the matters we wish to submit in relation to our appeal.

KIEFEL CJ: You could leave the cross-appeal for reply.

MR KISSANE: Yes, your Honour is suggesting we leave that to reply or - - -

KIEFEL CJ: Well, it is a matter for you, but it arises on the cross-appeal.

MR KISSANE: We simply say that the Court of Appeal applied the correct test in ordering a retrial. It was a matter of discretion. They ordered a retrial and we submit that the correct test was applied. It was open to the court to order a retrial in circumstances where the respondent had been twice convicted of the offences for which the Court of Appeal was dealing.

KIEFEL CJ: Yes, thank you. Yes, Ms Boston.

MS BOSTON: Your Honours, might I commence by seeking the indulgence of the Court of a brief comfort break?

KIEFEL CJ: Yes, of course. The Court will adjourn for a short period.

AT 12.04 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.10 PM:

KIEFEL CJ: Yes, Ms Boston.

MS BOSTON: May it please the Court. Your Honours, turning first to ground 1, at paragraph 35 of the judgment of the court below, which is to be found in the core appeal book at page 152, the court observed:

that part of the raison raison d'être for Division 7 . . . is the alleviation of the stress and trauma that may be occasioned to complainants by having once more to give evidence after a trial has miscarried.

However, as the court also recognised in that same paragraph:

Division 7 of the Act is not concerned to create a default position, whereby the recording of the previous evidence of the complainant in a sexual case is automatically or ordinarily or usually admitted.

In our respectful submission that must be so because to the contrary Parliament has determined that it should be presumed that an adult complainant in a proceeding relating to a sexual offence will be required to give viva voce evidence once more on any retrial. That is to be contrasted with the position which applies to child complainants under Division 6. And that the onus is on the prosecution to establish that it is in the interests of justice to admit a recording of evidence given in a previous trial is recognised by the court in that same paragraph and has been accepted by the appellant at all stages of these proceedings.

So much is clear from the fact that pursuant to section 380, which appears at page 30 of the joint book of authorities, the prosecution must serve a notice if it intends to apply to tender a recording and from the fact that section 381 states that the court:

may admit a recording of the evidence of the complainant if it is in the interests of justice to do so –

and due to the – quite obviously having regard to the non-exhaustive list of factors, due to the central significance of cross-examination and confrontation to our adversarial system of justice, in our submission it is not a burden which is lightly shifted. It is, after all, through cross-examination and confrontation the defence is able to test and challenge the prosecution case. The court below correctly articulated the test under section 381 at paragraph 28 and again at paragraph 33 which is also at page 152 of the core appeal book.

NETTLE J: Once you had cross-examination in which the Court of Appeal considered to be of conspicuous competence, where was the disadvantage in playing the film rather than doing it all again?

MS BOSTON: Well, with respect, your Honour, that was in the context of a completely different context, that first trial. So, although there was no criticism of the way that defence counsel ran that first trial, the context had completely changed by the time of the retrial in a couple of ways, very significant ways, in our submission.

Firstly, the first trial related to five complainants of which RC was one and the primary defence in that case was one of joint concoction, collusion and contamination due to the number of contacts between them. That was absent from the second trial. So what had been submitted by defence counsel in the court below was that it left – once you took all those matters out it left a bland examination.

The other way that the case had changed fundamentally is the way that the Crown put its tendency case. At the first trial, the tendency relied upon was that there were particular types of conduct and circumstances and a sexual interest in the particular class of persons and that related to only some of the charges, whereas on the retrial, the tendency sought to be proved was completely different. It was about sexual interest in a particular complainant and a willingness to act upon it and it was in relation to all of the charged and uncharged acts. So the questions which the jury had to determine as between those two trials were fundamentally different.

GORDON J: But they were not the complaints of counsel for the accused, were they, in relation to why it should not have gone in?

MS BOSTON: It certainly was raised by trial counsel in some respect but it was a different context.

GORDON J: That was to be dealt with by editing, was it not?

MS BOSTON: That was what her Honour found should be done. That is certainly, certainly so.

GORDON J: There was no complaint after that was done, was there?

MS BOSTON: That is true, your Honour. That is true. The primary, or one of the primary matters for consideration under this ground is what the third factor, unavailability or willingness means because obviously that is a factor which must be taken into account in determining whether it is in the interest of justice to admit a recording and as the court below observed at paragraph 41 of its judgment - and that appears at page 155 of the core appeal book – “willingness” means preparedness.

As the court below acknowledged that is so as a matter of ordinary language and it is reinforced by the fact that the section refers to the availability or willingness which indicates, in our submission, that willingness is akin to or on the same level as availability. Both concepts relate to whether the complainant would give evidence if the recording were not admitted or whether, on the other hand, the Crown would be left in a position where they would not be able to adduce that evidence.

KIEFEL CJ: But since it is not itself a determinative factor under the section, it is only one factor to be taken into account in the interests of justice, as a matter of construction is it not more likely that willingness refers to her attitude on a spectrum, of degrees and that the level of preparedness or willingness can be taken into account then by the trial judge.

MS BOSTON: With respect, no, not under subparagraph (1)(c). It may well be that attitude in certain circumstances may fall into the subparagraph (e) any other relevant matter, but in terms of subparagraph (c) what is required to be taken into account is whether effectively the Crown would be able to adduce this evidence if the recording were not admitted.

KIEFEL CJ: Well, the other approach, if you are going to confine “willingness” to an all or nothing position is that the person has to be positively willing, as a matter of construction, to give evidence for that to operate as a factor and one could take that as a possible construction because the statute might be taken to assume that there would be very few complainants who would be very interested in giving their evidence and being cross-examined again. That might be a good starting point.

MS BOSTON: It is difficult to imagine that there would be any complainant who would be willing to.

KIEFEL CJ: Exactly. So one might be able to construe “willingness” to say positive willingness and unless the person was positively willing then it is just – that is a factor to be taken into account.

MS BOSTON: Well, that is certainly, in my submission, not the ordinary – not the construction which the ordinary language of the section leads to.

KIEFEL CJ: Well, it does not matter whether you say “willingness” or “preparedness”, but if you are going to confine it, as your argument does, to something which is much narrower than putting it on a spectrum of degrees of preparedness you could go the other way from the way for which you contend.

MS BOSTON: Perhaps I will put it in another way if I might. Even if it is a spectrum, so even if we are wrong about the fact that it must be - it relates to preparedness, a mere preference not to give evidence would never be sufficient to establish – even of itself to establish that it is in the interests of justice that a recording be admitted.

GORDON J: Does it not depend upon why the preference is being expressed? I mean here it was expressed on the basis that she had been to seek advice and the counsellor suggested it is not a good idea.

MS BOSTON: Although of course even on the – even if one accepted what was said from the Bar table - - -

GORDON J: Well, assume for the moment that was said and it was right.

MS BOSTON: Even the learned prosecutor indicated that he was not sure if it was recent – recent counselling.

GORDON J: I am testing your proposition that preference alone is not sufficient. It depends upon what – consistent with what the Chief Justice put to you, the spectrum may include the reason for the preference.

MS BOSTON: Yes, and certainly I do not disagree with that proposition but, in our submission, although the attitude of a complainant may be something to be taken into account under, we say, subparagraph (e), when it comes to subparagraph (c) it is really relating to whether the Crown would be disadvantaged if the order were not made. That is what that subparagraph goes to.

In our submission the context confirms that natural interpretation as trial counsel for the respondent said in pre-trial argument in relation to this - this appears at page 78 of the appellant’s further materials, I dare say all complainants would prefer not to give further evidence and yet despite that undoubted reality, Parliament has specifically determined that the burden of persuading the court that it is in the interests of justice to admit the recording is on the prosecution.

If a mere preference was enough to establish that it was in the interests of justice to admit – I will start that again. If a mere preference were enough, it would defeat the purpose of placing the burden on the Crown because - - -

NETTLE J: You read “willingness” as refusal, do you?

MS BOSTON: We read “willingness” as willing to give evidence.

NETTLE J: The converse of “refusal”?

MS BOSTON: Yes, not being prepared to give evidence.

NETTLE J: Anything short of point-blank refusal is not sufficient to establish a lack of willingness for the purpose of the section?

MS BOSTON: The purposes of subparagraph (c)?

NETTLE J: Yes.

MS BOSTON: Yes, your Honour. But if we are wrong about that and it is a spectrum, clearly a mere preference would never be enough in and of itself to mean that it is in the interests of justice to admit the recording.

BELL J: But coming back to your primary argument, on your construction of the provision, the consideration of the interests of justice does not take into account the strong preference of the complainant in a sexual offence case not to give evidence based on professional advice. That is not a factor that bears on the exercise of the test that is directed to the interests of justice.

MS BOSTON: It could bear on the test in subparagraph (e). It is not what subparagraph (c) refers to, though. In our submission, the interests of justice is primarily concerned with the accused needing to have a fair trial. That cannot override any other consideration. In order for the accused not to be able to cross-examine a complainant when the case is fundamentally changed, there really has to be a very good reason for the recording to be able to be played.

BELL J: But here you seem to be conflating two of the criteria. You have concurrent findings against you relating to the absence of unfair disadvantage to the accused. You say the test of interests of justice is confined to consideration of the subparagraph (d) question?

MS BOSTON: No, certainly not. The interests of justice is primarily concerned about an accused having a fair trial. Obviously, there is also a public interest in convicting the guilty, but that consideration can never override the right to have a fair trial.

BELL J: It might be right that it would be a most unusual case where a judge concluded that the accused would be unfairly disadvantaged by the playing of the recording but nonetheless the interests of justice favoured that course. But where, as here, you have findings by the trial judge, upheld by the Court of Appeal, that the playing of the recording did not unfairly disadvantage the accused, I am not sure where your argument goes on that aspect.

MS BOSTON: There clearly is an unfair disadvantage in our submission because the nature of the case had just so fundamentally changed between those two trials. There must be.

When one cross-examines a witness, all of the considerations such as what topics to cross-examine on, in what order, and so forth, all those decisions are made based on what the prosecution case is and one does not necessarily know in the abstract how cross-examination might be different. It is difficult to undertake that exercise but one can infer that it would be very different.

The whole prosecution case had fundamentally changed. So there must be a level of disadvantage arising from that very fact – the fact that one does not get to cross-examine the witness on the basis of the prosecution case, to test that case.

In our submission, even if it is a spectrum, a preference is not enough to mean that it is in the interests of justice to admit a recording and in our submission that is supported by the extrinsic materials. If I might take the Court to page 643 of the joint book of authorities, which is in the second volume.

GORDON J: What tab number is it please?

MS BOSTON: It is at the very back. It is actually the very last page. There it is stated:

division 7 broadens the existing recorded evidence provisions beyond special hearings to apply to evidence given by other complainants in trial proceedings, for example an adult complainant. The law is sufficiently circumscribed in that it has important safeguards to protect the accused’s right to a fair trial. Unlike division 6, the presumption is that a complainant will give direct testimony in a subsequent hearing unless the prosecution applies to admit a record of their evidence given at trial. This ensures that it applies only in cases where a complainant is particularly traumatised and unable to give evidence again.

In our submission, in circumstances where all complainants would have a preference not to give evidence again, it is just simply not enough, it is not sufficient to establish that it is in the interests of justice for the evidence to be replayed.

Secondly, in the event, moving on to the second basis on which the court determined ground 1, there was simply no evidentiary basis for the learned trial judge to make an assessment as to the complainant’s willingness to give further evidence.

KIEFEL CJ: But it is put against you that none was required. There is no complaint about the court accepting what was said from the Bar table.

MS BOSTON: I will go to that, your Honour. My friend’s submission that trial counsel did not seek evidence; at page 78 of the appellant’s further materials - - -

KIEFEL CJ: Of the appellant’s further material?

MS BOSTON: Yes; that does not look right, though.

KEANE J: Are you looking for line 26:

there will be cases where despite the fact that there is a risk or there may be a risk for further stress and trauma, of course Your Honour has no evidence that there would be a risk of further stress and trauma -

KIEFEL CJ: Is this page 178?

MS BOSTON: I think it must be. Thank you; I am grateful, your Honour. Trial counsel submitted that a preference not to give evidence should not be the criterion upon which the decision is to be made. Trial counsel also made a point to the fact that there was no evidence of further stress and trauma of RC, should she be required to give viva voce evidence on the retrial, that all her Honour knew was that she would prefer not to give evidence and that, I dare say, all complainants would prefer not to give evidence.

NETTLE J: Well, she knew she chose not to on the basis of the advice of her counsellors after a couple of years of counselling.

MS BOSTON: Well, with respect that was not accepted.

NETTLE J: Not accepted by defence counsel?

MS BOSTON: It was not accepted by defence counsel. That is correct.

NETTLE J: Where do we derive that?

MS BOSTON: If I might return to that issue.

NETTLE J: Sure.

MS BOSTON: Now, the learned prosecutor stated – put the complainant’s attitude in a number of different ways. It was not purely the strong preference based on the advice of counsellors and others, so if I could take the Court to the respondent’s further materials at page 119. This was the page I was looking for before so I will return to that question. At line 17, it was raised by defence counsel:

Your Honour, I think that it is important that we don’t overstep the mark by taking it to a level where in every single case because a complainant prefers not to give evidence, that that should be the criterion upon which the decision is made.

KEANE J: Sorry, what page are you at?

MS BOSTON: At page 78 of the appellant’s book of further material, your Honour, and it is at line 17:

I think that it is important that we don’t overstep the mark by taking it to a level where in every single case because a complainant prefers not to give evidence, that that should be the criterion upon which the decision is made.

It is squarely raised by trial counsel, in our submission.

KIEFEL CJ: It is not very forcefully put, though, is it?

KEANE J: It is not a complaint about the absence of evidence. It is saying that it is making the contention that a preference should not be decisive, which no one is suggesting it is.

MS BOSTON: If one looks further down the page, your Honour, your Honour will see in the following paragraph - - -

KEANE J: Yes, there is no evidence of stress or trauma, or risk of stress or trauma. All your Honour has is the complainant prefers not to give evidence but there is no complaint that the judge is not entitled to act on the evidence – act on the statement of the fact.

MS BOSTON: What there is, in our submission, is there is an acceptance that the complainant would prefer to give evidence. That is based on trial counsel’s acknowledgement that any complainant would prefer not to give evidence. There is not an acceptance of anything beyond that. That is important in circumstances where defence counsel put the complainant’s attitude in a number of different ways and if I might to take the Court to the different ways it was put.

GORDON J: This is at what stage, Ms Boston?

MS BOSTON: At what stage?

GORDON J: The material you are about to take us to.

MS BOSTON: It was at the very start of the argument, your Honour.

GORDON J: About the recording?

MS BOSTON: Yes. It is at page 120 of the respondent’s further materials.

KIEFEL CJ: The respondent’s page 120?

MS BOSTON: Yes, your Honour, and this is at the very start of the pre-trial argument. It actually starts on the previous page, page 119:

Obviously the prosecution position is that it wants to make application to be able to lead the evidence of [RC] by way of replaying her evidence from the previous trial, that’s our primary, first application, if I can put it that way.

Further on, at line 32:

ultimately the application is one that the Crown makes because it’s required to under the act, but the act also permits it to be done in the sense almost as an alternative to the complainant giving evidence. Again it’s intended to resolve the evil . . . the harm that can be occasioned to the community in circumstances where a complainant is, through no fault of hers or the Crown’s or anybody else’s, required to give evidence again, so the Crown has taken the view, she having expressed a desire not to give evidence, that we should make the application –

So that is the first way it is put by the learned prosecutor. Moving on to the next way, it is at the appellant’s book of further materials at pages 74 to 75, and this is the passage which the Court was taken to earlier. At line 24 the learned prosecutor says:

I’ve conferred with her. She prefers not to give evidence.

Agrees:

She’s otherwise available. She’s had counselling. I can get some evidentiary material if I need to but if the court is prepared for the moment at least to take it from the prosecutor that I’ve conferred with her. Her strong preference, based on advice from counsellors and others is to avoid giving evidence if at all possible. That is her preference.

Her Honour then asked:

So it’s counselling undertaken since the first trial?

The prosecutor replies:

It’s continuous counselling that’s part of the process but certainly my impression was that it was counselling in recent times but would the court just defer acting on that until I confirm that.

That was never confirmed one way or the other. So it is clear, in our submission, that the extent of the conversations between the learned prosecutor and the witness were not extensive, if he was not even aware of when this counselling had taken place.

Then at page 78 of the appellant’s further materials, that is the passage I have just taken the Court to before, where trial counsel makes the point that it is important that we do not overstep the mark by taking it to a level where in every single case, just because a complainant refers to - but at line 27 this is where the defence counsel does take issue with the state of the evidence in that there is a lack of evidence, the inference being, if one accepted that the witness’ preference not to give evidence was based on the advice of counsellors, the inference being that it would be because of stress and trauma, otherwise why would the counsellor be giving that advice.

So, in our submission, issue is being taken with that. At most, what is being accepted by defence counsel is that there is a preference not to give evidence, defence counsel obviously having made the point that any complainant is going to prefer not to give evidence. That is the extent of the concession by the defence. So, with respect, we reject the contention of our learned friends that it was not raised.

In any event, the prosecution did not – simply did not discharge its burden of establishing that it was in the interests of justice in this case for the two reasons which the court below found: firstly, at paragraph 41, which appears at page 156 of the core appeal book. This is where the court concludes that a preference not to give evidence does not amount to an absence of willingness to do so. It is just not enough. It is not enough. The language of the section makes that clear, that availability or willingness is on the same sort of level as availability and the – in our submission it is just not enough.

Even if RC had a desire or a preference or even a strong preference not to give further evidence, she was prepared to give evidence. She was willing to do so. Indeed, at page 143 of the respondent’s book of further materials, Mr Papas says at line 12:

that acts as a positive in this case. We know where we stand.

He is referring there to the fact that everybody knows what the evidence will be.

But in the end if we have to lead it again, we’ll lead it again.

So, it is a clear acknowledgement from the prosecution that if the application is refused the complainant will give her evidence.

KIEFEL CJ: That is obvious, is it not? That might be a convenient time. The Court will adjourn until 2.15.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Ms Boston.

MS BOSTON: Your Honours, the second basis upon which the court below found error in admitting the recording was that there was no evidentiary basis for the learned trial judge to make an assessment as to the complainant’s willingness to give further evidence which is, of course, one of the factors to which regard must be had and to that extent it is a precondition, although, of course, the ultimate consideration is what is in the interests of justice.

The integrity of the learned prosecutor is obviously not in question but the credibility of the complainant was and remains so. In those circumstances, in the absence of a concession, of which there was none, the ordinary rules of evidence applied. Contrary to the assertion that - - -

BELL J: Can I just take up with you, from that submission do I understand that you do assert that the only proper way to test the matter would be for the complainant to be required to give evidence?

MS BOSTON: No, your Honour.

BELL J: But I thought you said it was her credibility was the issue in this context.

MS BOSTON: Yes, your Honour, but it is not simply accepted. So, contrary to the appellant’s assertion that the decision of the court below presupposes that the complainant would have to be called, that is not necessarily the case. In fact, in most cases it would not be necessary. We have made the point at paragraph 16 of our submissions that there are other ways in which the evidence could be adduced and perhaps in most cases it would not – in almost all cases it would not be necessary for the complainant to give evidence.

The lack of case law in this area is really a product of the fact firstly that usually the defence consents to the playing of the recording. There is no issue about it. Here that was not thought appropriate because of the fundamental change in the prosecution case. So, ordinarily it is not an issue, it is just played, and one might anticipate that that common practice would continue.

But even where the evidential requirements are not waived, in many cases a third party will be able to give evidence about a complainant’s lack of willingness to give evidence either on the basis of firsthand evidence of their observations of the complainant and/or as admissible hearsay evidence, most obviously under the hearsay exception in section 66A of the Evidence Act which relates to the state of mind of a person.

So, depending on the case the witness may be, for example, a friend or a relative of the complainant, perhaps a counsellor if the complainant is happy for that to occur or a member of the Witness Assistance Service, for example.

So there are a number of other people who would be able to give evidence and the defence may be content with the filing of an affidavit in certain cases. If cross-examination is required, usually it would not be cross-examination of the complainant. So the decision of the court below certainly does not presuppose that the complainant would have to give evidence.

The court below did not need to consider whether a substantial miscarriage of justice had been occasioned. We submit that in accordance with our submissions at paragraph 19 the conviction was not inevitable. I will not go through all of those in detail, given the time, but we note in particular also that the first trial relied on this concoction/contamination theory in relation to five complainants and the focus which was called for on the second occasion was very different.

At the first trial the cross-examination of RC focused on RC convincing TB to herself to make accusations against the respondent, not on what RC told TB about her own allegations. So it is quite a different focus and in all fairness to trial counsel who appeared, in terms of the submissions that were made, the admissibility of RC’s evidence, the recording of it, the argument in relation to whether it was admissible took place before the tendency issue had been determined and in fact it took place on the same morning where the prosecution had only just provided that morning the defence with a further amended tendency notice. So it was in those circumstances that trial counsel was making her arguments about the unfair disadvantages and so forth that would be made.

NETTLE J: But she did not renew it.

MS BOSTON: She did not renew it, your Honour.

NETTLE J: It was open to her to do so. It was only an interlocutory ruling at best.

MS BOSTON: I cannot disagree with that, your Honour. But just in terms of whether all of the issues were fully ventilated, it is a product of that, in that defence counsel simply was not aware at the time these arguments were made what the prosecution case was going to be.

NETTLE J: That was still two weeks in advance of the beginning of the trial?

MS BOSTON: Well, in fact, and I will be getting to this in relation to ground 2 - I might actually, in terms of the notice that was provided, it might be convenient to go through the chronology of what actually occurred because - - -

NETTLE J: Well, do not let me deflect you from completing ground 1.

MS BOSTON: Okay. I will come to the chronology of what actually occurred, but certainly the prosecution had not made a decision about whether they were even going to rely upon the tendency reasoning until the very morning of the trial – pre-trial argument on 16 March. That day had been set for pre-trial argument in relation to the tendency and the pre-recorded evidence and the prosecution filed the notice that morning, provided to the defence. I will move on to ground 2 at this stage.

In terms of the approach on appeal, your Honour Justice Nettle has referred to how the matter had been resolved on the basis of New South Wales authority to your recollection. That is correct. There is a decision of Dibbs v The Queen [2012] VSCA 224 where the Victorian Court of Appeal considered what the applicable test was in considering the admissibility of tendency evidence, and it considered a lot of the New South Wales authorities and ultimately determined that the test on appeal is – it is not House v The King principles. Those principles apply on an interlocutory appeal according to the authorities in Victoria but on a proper appeal – ultimate appeal, it is a question of the court determining the question for itself. So that is the state of the law in Victoria.

BELL J: I think added to that there is a decision of McCartney v The Queen [2012] VSCA 268; (2012) 38 VR 1 which again rejects House v The King as the basis for appellate review.

MS BOSTON: Yes, thank you, your Honour. In terms of the rulings, before I start the submissions, I do just wish to make clear there were three rulings of the learned trial judge in relation to the admissibility of the tendency evidence, all of which are set out in the appellant’s book of further materials. The first ruling was ruling number 2 from the 31st and that is at 238 of the appellant’s book of further materials.

KIEFEL CJ: Sorry, appellant’s or respondent’s?

MS BOSTON: The appellant’s book. So, this is the first ruling in relation to tendency and this is in respect of RC only. So, in answer to your Honour Justice Gordon’s question earlier about the section 101 test, this entire ruling is in relation to RC’s proposed tendency evidence.

The next ruling, ruling number 3, appears at page 255 of the appellant’s book of further materials. This ruling was in respect of the proposed tendency evidence emanating from TB. Subsequently, this Court’s decision in IMM was handed down and defence counsel asked her Honour to revisit her rulings in light of the Court’s decision in IMM.

Her Honour had determined ruling number 2 relating to RC purely on the basis of RC’s evidence, JLS-type reasoning which this Court - and that reasoning, in my submission, was rejected by the majority in IMM. So, subsequently in ruling number 4, the ex tempore ruling appears at page 332 of the appellant’s book of further materials. Your Honours will see here that her Honour concluded that IMM did not require her Honour to revisit either of her rulings. So, that was 28 April 2016 and subsequently her Honour provided revised reasonings on 11 October 2016. That appears at page 333. That is where her Honour considered that IMM did not require her to revisit her rulings.

In terms of the evidence in the case, TB gave the sole evidence in relation to charge 2. RC did not give any evidence about that. RC gave the only evidence in relation to charges 1 and 3 through 18. TB did not give any evidence about those charges. Further, TB gave evidence of the incident in the Shepparton bedroom which is in the further notice which appears at page 59 of the appellant’s book of further materials.

Your Honours will see at page 61, table B, the particular 1 – so, I will refer to that as uncharged act B1 - that is the incident of which TB gave evidence. RC gave no evidence in relation to that alleged incident either. In respect of her evidence about Port Macquarie, her evidence about that did not support RC’s evidence at all. It contradicted it for the reasons set out in our submissions. I can go into that in further detail if the Court would be assisted.

That matter, in fact the defence were not even going to adduce evidence of it from TB beyond the fact that they had gone to Port Macquarie, it having not been included in the further amended tendency notice, the prosecution were not going to adduce evidence of it. It was actually the defence who determined that the evidence should be adduced because it was so inconsistent with RC’s account of what had taken place. So it did not support her evidence at all. And again, I can go into that in more detail if required.

BELL J: You are telling us in relation to TB’s evidence of the Port Macquarie incident that it was not adduced by the prosecution to prove a tendency. It was adduced by the defence to cast doubt on the reliability and credibility of TB.

MS BOSTON: Formerly it was adduced by the prosecution upon the request of the defence that it be adduced.

BELL J: I see. But its purpose, viewed through the lens of the defence case, was because it went to the reliability and credibility of TB. Is that right?

MS BOSTON: No, that it did not, that it contradicted RC’s account to such an extent.

BELL J: I see. All right.

MS BOSTON: That is the point really. It was not supportive of evidence of RC at all. It contradicted what she said about it, about Port Macquarie. It is a little bit confusing because – well, it is very confusing because TB did give evidence of uncharged act B1 and that involved a confrontation the following day with the mother and so forth, which was similar in some respects to the evidence that RC had given about Port Macquarie. So it was quite confusing, but there was actually no overlap of any – in relation to any of the evidence.

BELL J: Just looking at the analysis that is the subject of challenge before us, it is the admissibility of TB’s evidence of the incident in the bath and the incident with the appellant lying on top of RC in the bed with the blanket over them.

MS BOSTON: Correct.

BELL J: Those are the two incidents and – I am sorry, I am just entirely unsure what the relevance of telling us about Port Macquarie is.

MS BOSTON: Because my friend relies on those two matters, TB’s evidence about Port Macquarie and the box found at the respondent’s home as somehow being supportive of RC’s account, separately from the tendency issue - - -

BELL J: Well, that is nothing to do with ground 2, surely. Ground 2 concerns the analysis of the admissibility or otherwise of tendency evidence in the context of the approach that the Court of Appeal took.

MS BOSTON: As I understand my friend’s submission about those two matters, they amount to special features in the terms imagined in or referred to in this Court’s decision in IMM.

NETTLE J: Well, he says he does not need special features first up because the evidence comes out of the mouth of TB and not the complainant, but if he does need special features, whatever that means, he has got them.

MS BOSTON: It is simply the point that there was no other support other than these – no other arguable support beyond the two matters in the tendency notice.

NETTLE J: Why does he need special features, if he needs them at all, if the evidence comes out of the mouth of TB?

MS BOSTON: Precisely, your Honour. Perhaps if I go through the court’s reasons and explain that, because this was effectively a single source case. Given the court’s conclusion about how TB’s evidence was so vague it was not able to support the proposed tendency - - -

NETTLE J: Can I just clarify this. There is no dispute, is there, that the evidence given by RC about each count was cross-admissible on each other count?

MS BOSTON: There is a dispute because if TB’s evidence was not admissible as tendency evidence because it was so vague, that would leave only RC’s evidence in support of the tendency reasoning. That would be to infringe upon this Court’s reasoning in IMM, a bootstrap reasoning.

NETTLE J: Well, I was in the minority in that case, but I did not understand it to trench upon the well-established view that when a complainant gives evidence about multiple sexual offences committed against them by one accused, each is cross-admissible ordinarily in relation to the other.

MS BOSTON: Except that in that case and in this case there was no reason to accept RC’s credibility in relation to any one charge over her evidence in relation to the other charges. I am perhaps starting it from the wrong direction in terms of putting the argument, but the court below obviously set out the principles at length emanating from this Court’s decisions in Hughes and IMM and the court was not mistaken about the law in that respect, in our submission. At paragraph 63 of the court’s - - -

NETTLE J: Just one further question, if I may. What has Hughes got to do with it? It was a case about multiple complainants and the admissibility of offending against one as probative of offending against another because of what was said to be not striking but special features of the offending constituted having an attraction towards little girls and exploiting it when the opportunity presented itself in close proximity to persons who might detect it.

MS BOSTON: Well, it is relevant in terms of the general principles about the matters which the Court needs to take into account, for example, that significant probative value requires consideration of the extent to which the evidence supports tendency and the extent to which the tendency makes more likely the facts making up the charge facts. It is relevant in the general principles that are set out in that case. Obviously, it is quite a different case from here where the alleged tendency is in relation to sexual interest in a particular complainant. It is quite a different context self-evidently.

BELL J: What Hughes does recognise is that in some cases proof that a mature adult has a sexual attraction to a young person and a tendency to act on that attraction, whether it be to one young person or more than one young person, may be relevant and meet the test of significant probative value for the purposes of section 97. Here what was sought to be established was that the appellant had a sexual interest in RC and a tendency to act on it and, in that regard, the Court of Appeal considered evidence from an independent source, direct evidence of the appellant procuring RC to hold his penis and evidence of the appellant lying on top of RC in her bed moving on her in some fashion that was demonstrated, was evidence that did not have significant probative value on the issue of if he had a sexual attraction to RC and whether he was prepared to act on it.

MS BOSTON: The court’s reasoning for that was because of the vagueness of her evidence.

KIEFEL CJ: What is vague about it?

MS BOSTON: In respect of charge 2, TB’s evidence about charge 2 is set out in the appellant’s book of further materials from page - - -

KIEFEL CJ: I am sorry, I should have said, what is vague about it from the point of view of the Court of Appeal? How did they identify vagueness?

MS BOSTON: In the sense of the matters which went to its vagueness, your Honour?

KIEFEL CJ: How did they describe it as vague? How did they explain that as vague?

GORDON J: It is on page 180, is it not?

MS BOSTON: Yes, your Honour. Yes, I found it.

KIEFEL CJ: Paragraph?

MS BOSTON: It is paragraph 82.

BELL J: Was it not the reasoning that the touching on the penis was an incident too isolated to establish the relevant tendency?

MS BOSTON: By the word “isolated” the court clearly does not mean of itself. It is clear from the context that that is not what the court means. That is apparent from its use of the words on the following page, page 180, line 3, “even when considered with the other evidence”.

NETTLE J: Why is it isolated? What do they mean by that?

MS BOSTON: What they must mean by it – well, isolated can mean a variety of - - -

KIEFEL CJ: They mean it in a temporal sense, do they not? The single event in 1990 and then references to 1992 and 1993.

GORDON J: That is clearly right given the way in which – it starts with “TB’s evidence lacked any special feature”. The whole paragraph is directed at a conceptual question which is arguably not the question to be asked.

MS BOSTON: By “special feature” all the court is meaning – it is just a convenient term to sum up all of the case law that they have already been through on the previous pages. It is not adding any requirement to what constitutes significant probative - - -

KIEFEL CJ: I think you have been given two questions and you are directing yourself to the last, quite understandably. The first question was what the Court of Appeal meant by too isolated in the context of your argument about “vagueness”, and the second question which Justice Gordon has asked is whether or not with respect to independent evidence and not just sole complainant evidence you need a special feature at all. Perhaps you could direct yourself to each of those separately.

MS BOSTON: Yes. In terms of the isolation question, clearly they did not mean by itself. It is apparent in the paragraph how they keep referring to even when considered with the other evidence, either alone or in combination and so forth, it is an ambiguous word. In the context, in our submission, they meant it to mean desolate, vague, bare, obscure, not surrounded by detail, insufficient surrounding facts relating to the incident, not isolated in a temporal sense because it is inconsistent with the other matters that they raise in that paragraph.

It must just mean it was too vague and when one looks at the evidence, it is very vague. It is at pages 12 to 13 of the appellant’s further materials. Your Honours will see it starts at line 29 of page 12 and goes down to line 20 on the following page. TB says that she was “washing his back” at the time this was happening. Her view is necessarily impeded as a result. She says that:

He had a wash cloth over his privates, but then my sister came in and . . . he got her to touch it.

There is no specification as to whether at this time his penis was still covered by the wash cloth. She gives no evidence about duration, about the type of touching, no evidence about whether the respondent used RC’s hand to masturbate his penis, for example. There is no evidence as to whether the penis is erect. The only evidence is that - - -

BELL J: Whether it is erect or not, it is evidence that an adult man in the bath got a small girl to put her hand on his penis. Now, that, one might think, is some evidence of a sexual interest and a willingness to act on it, surely.

MS BOSTON: From a witness behind, washing the back of the respondent at the time that this is said to be happening it is very vague. It is very vague.

NETTLE J: You are talking about credibility and reliability, are you not?

MS BOSTON: Not in terms of the obstructed view. That falls into the same category - - -

KIEFEL CJ: You are talking about weight. You are talking about the weight of it but surely that is a matter for counsel to have gone into but in the context of tendency evidence it has nothing to say.

MS BOSTON: If I might respond first to Justice Nettle’s question, this Court in IMM, the majority gave the example of the identification through fog, a dark night, of a person they did not know. The Court mastered in saying that – and I appreciate the irony of making this submission, when given the constitution of the Court today as compared to then, there is not much difference – but must have meant contestable issues of reliability and credibility are to be taken into account because otherwise the example given about the foggy identification, those matters could not be taken into account as going to probative value.

It must be contestable matters for reliability and credibility cannot be taken into account for the purposes of assessing probative value with the rationale being obviously not to remove from the province of the jury questions which ought properly be determined by the jury.

EDELMAN J: Sorry, I am not sure I understand - how does the example of the foggy situation fit with an assessment of the evidence taken at its highest?

MS BOSTON: Well, because a jury could not rationally act on such evidence and when one looks at this Court’s reasoning in IMM, certainly there is - - -

KIEFEL CJ: Well, the reasoning in IMM (2016) 257 CLR 315, paragraph 50, is to use the example of the identification and foggy conditions to show that the circumstances surrounding the evidence may indicate that its highest level is not very high.

MS BOSTON: Yes.

KIEFEL CJ: Well, that is a question of weight.

MS BOSTON: Of weight?

KIEFEL CJ: Well, I am sorry. The highest level at which it is taken in terms of determining this.

MS BOSTON: But, as I understand the majority’s decision there - - -

KIEFEL CJ: Well, that is what the majority says.

MS BOSTON: But the majority appears to be accepting that that evidence could be deemed inadmissible without going to the jury. So it is a question of where a trial judge is assessing, at least to some extent, reliability and credibility. I note that throughout the judgment - - -

KIEFEL CJ: No, it all goes to the question of the probative value of the evidence. That is what the last sentence in that paragraph says.

MS BOSTON: It does. So that the - - -

KIEFEL CJ: By the trial judge.

MS BOSTON: The fact that it is through fog, that it is dark, that it is a person they do not know, factors traditionally seen as reliability, the majority in IMM appears to be accepting that those matters would be proper for a trial judge to take into account and therefore my submission is what the Court must have meant is that it is contestable questions of reliability and credibility which are not to be taken into account.

Where something obviously has to affect the weight that could be given to evidence it has to be – that is a matter which a trial judge can properly take into account. I note that – I draw some support from the decision of the New South Wales Court of Criminal Appeal [2016] NSWCCA 78. I understand a copy of that decision has been provided. It was not in the joint book of authorities.

This is a case to do with contamination and so forth but – and I will come to it in that context in due course, but at the very last page from Justice Button - it is actually the last page but the first side of it, paragraph 129, Justice Button considers:

I have reflected upon whether the decision in IMM v The Queen [2016] HCA 14 supersedes the jurisprudence that has developed in this Court since the handing down of the judgments in R v Shamouil -

and this is in the context of contamination.

On the one hand, it is now clear that trial judges are not to engage in an assessment of credibility or reliability in assessing probative value, that could suggest that there is no rule for consideration of alternative inferences about asserted concoction or contamination. That is because it could be said that the possibility of concoction is merely an aspect of credibility, and the possibility of contamination is merely an aspect of reliability.

KIEFEL CJ: Is this put forward on the basis that this would assist - his Honour’s view of IMM would assist us in determining what the majority held?

MS BOSTON: I am just going to adopt what Justice – said on the following page at paragraph 133.

KIEFEL CJ: Yes, I see.

MS BOSTON:

Finally, the plurality spoke of the possibility of evidence, even when taken at its highest, possessing low probative value (the “identification on a foggy night” example): at [50]. That approach seemingly admits of taking into account, at least, factors that go to the reliability of the evidence.

I note that throughout IMM - and that would be taking the evidence at its highest, if it is matters which must necessarily - but at a weight of the evidence.

GORDON J: Is that your distinction between contestable and non-contestable?

MS BOSTON: Yes, and, in fact, going back to GM, earlier in that decision in paragraph 93, the court sets – the Chief Judge at Common Law at this point sets out a passage from McIntosh which is in fact cited by the majority in IMM, but at paragraph 47 of McIntosh cited there, Justice Basten in a decision with which Justices Hidden and Wilson agreed, said:

Whilst, in determining probative value as a question of capability to affect the assessment of a fact in issue, the court is not required to disregard inherent implausibility, on the other hand, contestable questions of credibility and reliability are not for the trial judge, but for the jury.

Obviously, McIntosh preceded IMM but in circumstances where IMM related to the conflict between Shamouil on the one hand and Dupas on the other the case law which had developed in New South Wales is certainly relevant to what the majority of this Court thought was meaning in IMM.

GAGELER J: So, I have a difficulty with some of the terminology. Do you draw a distinction between reliability and weight and, if you do, what is the distinction?

MS BOSTON: Reliability has to do with the trustworthiness – well, it is interesting, is it not, because the Evidence Act obvious defines “credibility” in a way which includes reliability. Traditionally, reliability has been seen as relating to matters which are not trustworthiness, things that might affect the weight that is given to evidence other than trustworthiness which is - - -

NETTLE J: It is the capacity of the witness to see and then relate what they saw.

MS BOSTON: Thank you, Justice Nettle.

NETTLE J: As opposed to whether or not they are telling the truth or not, which is credibility.

MS BOSTON: Yes.

GAGELER J: So that is reliability, is it, that definition?

MS BOSTON: Yes.

GAGELER J: Then the difference between that and weight is what, in the way in which you have been using the terminology?

MS BOSTON: Well, weight goes to how much weight one might give in the context of a particular case to a particular piece of evidence.

NETTLE J: If you take a Domican warning, for example, one would ordinarily warn a jury that in giving weight to this evidence you should take into account the following factors which you may consider reflect on its reliability.

MS BOSTON: Yes.

NETTLE J: If that is so, what is the answer to Justice Gageler’s question? What is the difference between the reliability of evidence and a weight which the jury can rationally give it?

MS BOSTON: I confess I cannot think to answer the question any differently. I cannot distinguish between – I confess I have not considered the question.

KIEFEL CJ: In any event, returning to the question Justice Gordon raised a little earlier, the Court of Appeal was not approaching it on some view of IMM in this regard, was it, at paragraph 82? It was looking for a special feature which it thought had to attach to the independent evidence.

MS BOSTON: The court did not mean – perhaps in order to answer the question – this is the special feature in relation to TB’s evidence, is that - - -

KIEFEL CJ: Yes, I am referring back to paragraph 82 which is where we, I thought were coming – you were analysing.

MS BOSTON: Yes. Well, by the term “special feature”, all they are meaning – it is just a convenient term, as I said, to sum up the law. They were not referring to “special feature” in the way that it was used in IMM.

KIEFEL CJ: Well, I think you might have to read paragraph 81:

Without any special feature, in light of IMM and Hughes . . . evidence going to tendency could not be considered to possess significant probative value.

MS BOSTON: Yes, but this is in circumstances where – perhaps I will go back. At paragraph 63 – if I can go back quite a way before we get to these paragraphs to explain why the court was not in error – firstly, at the bottom of paragraph 63, page 169 of the core appeal book, in the present case and so forth it:

flowed principally from a single source -

The court then goes on to consider various decisions relating to single source, single complainant cases for two reasons: firstly, because that is the way that the learned trial judge had approached the question, so in ruling No 2, her Honour the learned trial judge had considered the admissibility of RC’s evidence in line with the JLS principles purely considering RC’s evidence; and, secondly, the court was obviously aware of the conclusion it was going to reach in relation to TB’s evidence, namely that it was simply too vague to support the proposed tendency. That is the reason here why the court goes through these - - -

KIEFEL CJ: You mean it is by way of putting it out of the way so that you are only left with RC’s evidence and then it requires a special feature?

MS BOSTON: Yes.

KIEFEL CJ: But that does not really accord with the reading of the first sentence in paragraph 82, where the court takes itself to TB’s evidence to see if it has any special feature in determining whether or not to put it aside.

MS BOSTON: Yes. So obviously again the court, possibly more logically the paragraphs could have been inverted. The use of the term “special feature” in respect of TB’s evidence does not mean special features in the sense that this Court referred to in IMM. It is simply a convenient term to sum up the fact that tendency evidence has to have significant probative value, that it is a high threshold.

In respect of TB’s evidence, if her evidence was too vague to support the proposed tendency, and it was, then you would be left with RC’s evidence as the sole source and hence the IMM-type reasoning becomes relevant.

BELL J: But looking at RC’s evidence, the issue in IMM was of the admissibility of an incident that was not charged - the complainant gave evidence of that, there was no support for it apart from her evidence - and query in that context its capacity to have significant probative value to any issue in the trial. In the case of RC’s evidence, we are looking at some 17 counts that are charged and where no issue is taken about the cross-admissibility of the evidence. I do not know whether there is some particular argument about an uncharged act or acts tendered for a tendency as distinct from a context purpose in relation to RC’s evidence.

MS BOSTON: Firstly, the possibility of RC’s evidence was contested, so that is the first thing.

BELL J: So, it should have been separate trials of each count?

MS BOSTON: No, the severance issue was a different question. The prejudice in relation to those charges being heard together would not outweigh the reasons why one would have them together. It would require RC to come to 17 different trials. Self-evidently, it would be in the interests of justice to order severance in respect of those charges.

GORDON J: What do you propose, a direction from the trial judge that each charge is to be considered separately and without reference to the evidence of any of the other charges?

MS BOSTON: Yes, and that is ordinarily what occurs when tendency reasoning is not permitted. Obviously, in some cases, in many cases, it is admissible as context evidence as well but - - -

NETTLE J: This is classic HML, this is cross-admissibility of counts against the one complainant being probative of other counts against the one complainant.

MS BOSTON: Except that the basis of the majority’s decision in IMM as to why that uncharged act was not admissible, the reasoning behind that conclusion was because it was difficult to see how one might reason rationally to conclude that X’s account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her. I appreciate that your Honour Justice Nettle was in the minority in terms of the circularity of the reasoning but - - -

NETTLE J: Whatever it says is the law but do you say that overrides HML?

MS BOSTON: Yes.

NETTLE J: As to cross-admissibility of counts against the one complainant?

MS BOSTON: If it is bootstrap reasoning, yes.

KIEFEL CJ: When you have just said the words in IMM where it said “another occasion”, in IMM it was “one other occasion”, that was the point, was it not?

MS BOSTON: The reasoning behind it is still equally applicable whether it is one uncharged act or 17 charged acts and the reasoning behind it applies equally.

GORDON J: If you took that argument - contention, to its logical conclusion, it would mean that you would never have tendency evidence unless you have got third party support.

MS BOSTON: Not necessarily third party, it could be, for example - - -

GORDON J: Well, I will put it elsewhere – you would have to have someone like TB.

MS BOSTON: Or, for example, as occurred in Thu v The Queen, which is in the joint book, there were text messages from the accused to the complainant which independently established a sexual interest in her. So, it did provide independent support for her account.

GORDON J: So, some third party support.

MS BOSTON: Yes, and that is the effect of the majority’s decision in IMM, in my submission, paragraph 60 to 64. Whilst the majority does not use the term “bootstrap reasoning”, that is what it is relating to, in our submission. It cannot – so that is why - - -

GAGELER J: You told us that Hughes is helpful in setting up the structure of tendency reasoning. Now, for tendency reasoning, you need to have evidence that is probative of the tendency, then the tendency has to be probative of the occurrence of the fact in issue. I think you accept that?

MS BOSTON: Yes.

GAGELER J: Now, is there not a big difference between one other act being probative of a tendency, said to be probative of the tendency, and 17 other acts?

MS BOSTON: No, because the vice is still that is from the same source. It simply cannot make more likely – there is no reason to accept that individual complainant’s evidence on one count more so than in respect of another one. The number of charges is irrelevant. If one proceeds on the basis of - - -

KIEFEL CJ: Where are we in relation to your outline now?

MS BOSTON: I have no idea, your Honour.

KIEFEL CJ: Are we up to additional reasons why inadmissible at paragraph 6?

MS BOSTON: Almost. This is the prejudice. Obviously, the court below did not have to consider these questions. Sections 101 and 105 were raised both at first instance and in the court below, and the court has not specifically referred to them in the reasons, but they were raised.

BELL J: What was the risk or what was the – when one weighs the probative value of TB’s evidence against possible prejudicial effect, what submission was put as to the possible prejudicial effect of the evidence?

MS BOSTON: One of the submissions that was put was in relation to the contamination issue, so I am kind of getting a bit out of order, but the defence - and I can give the page references without necessarily going to them, but the appellant’s book of further materials at 201, 207 and 229. The defence indicates that it could not – it was not going to rely upon any argument about contamination between TB and RC because it would be without introducing highly prejudicial material, so in the event, there was no argument run about contamination or concoction on the retrial.

NETTLE J: So, what was the prejudice of adducing TB’s evidence?

MS BOSTON: That the jury would not hear alternative explanations for why she might be giving that evidence. It could not be ventilated before a jury without introducing highly prejudicial material about other complainants.

NETTLE J: Well, you pay your money and take your chance, do you not?

MS BOSTON: That it is a forensic decision does not take away from the fact that it is a significant prejudice.

KIEFEL CJ: You mean it is prejudice because you are faced with a forensic decision?

MS BOSTON: No, it is a prejudice because whichever course counsel decides to take, it is going to be highly prejudicial. That decision would not be necessary if TB’s evidence were not adduced as tendency evidence, so it is because of it being admitted that it gives rise to that impossible decision for trial counsel? I accept that probative value in respect of all of the sections in 101 and 137 must mean the same thing as in IMM, the very high threshold.

In terms of the – I should have said in respect of the probative value at 97 and 101 in the context of talking about contestable matters of reliability and credibility, the fact that a 30-year-old is giving evidence of something they witnessed when they were four-years-old, in our submission, although it is not part of the basis for the decision of the court below, those matters are so extreme in terms of they necessarily must affect what weight a jury could possibly give to evidence, those are matters which could properly be taken into account in assessing probative value.

NETTLE J: You say it passes the Shamouil test, that no rational jury could give it the weight at its highest that makes it of probative value?

MS BOSTON: Yes, your Honour. It is an extreme example. Matters such as her psychiatric issues, obviously they are not matters which the judge would take into account. The fact that in 2000 TB made a police statement saying she had witnessed nothing, that is probably a matter for a jury to determine. Her intellectual disability, there was not really much evidence about what her intellectual disability was in order for that to be taken into account at the admissibility stage. But her youth, four-years-old, giving evidence 25 years later, it is extreme.

BELL J: Well, instead of putting matters going to probative value, I mean the other way of viewing it is the practical difficulty of testing that evidence.

MS BOSTON: Yes.

BELL J: You are cross-examining a woman of 30 about her assertion of what she remembered at four.

MS BOSTON: Yes. So certainly, in our submission, matters of reliability and credibility must be taken into account on the prejudice side of the equation. The majority in IMM at paragraph 57 referred to Justice Basten’s observation R v XY [2013] NSWLR 363 at paragraph 14 that the unreliability of the evidence was a factor to be weighed on the other side of the scale. That is in respect of 137. Logically, it applies equally in respect of 101. Just as a matter of logic, prejudice often arises from a risk that the jury will give too much weight to it. That necessarily entails a consideration of what weight a jury should or at least could give to evidence. So reliability and credibility must be taken into account in assessing the prejudicial side of the ledger.

NETTLE J: But you say that it has such inherently low probative value that the jury could not rationally attribute to it a probative value which outweighed such advantage as there might have been.

MS BOSTON: Yes, and in the alternative, if that is not accepted, it certainly goes to the prejudicial side.

NETTLE J: Could I just come back to the prejudice, you said the prejudice was the forensic choice one would have to make of discrediting her witness by reference to the possibility of concoction and that counsel wished to steer clear of that. Was that it?

MS BOSTON: There was also the risk of the jury according undue weight to TB’s evidence.

NETTLE J: Put that as the concoction point. I did not quite follow it. Why is that prejudicial?

MS BOSTON: It is prejudicial because even though it is a forensic decision, whichever choice counsel makes it is going to be prejudicial to the accused to - - -

NETTLE J: Why is it prejudicial to put to the witness that her evidence is concocted in conjunction with the complainant?

MS BOSTON: Because it was so bound up with the allegations of the other complainants that it could not be disentangled from that whole picture.

GORDON J: Then the question is more direct. Your concoction point is multilayered. It was possible, was it not, to put the concoction point limited to the concoction between TB and RC, without reference to the other complainants?

MS BOSTON: Counsel, for whatever reason, determined that that was not something that could be done in this case and it is evident from those passages that I listed before that she considered it would be too much of a risk to - of the other prejudicial material being admitted, including of course TB’s own allegations.

NETTLE J: She went pretty close to it in cross-examination anyway of TB that RC had leaned on her after she had denied the offending.

MS BOSTON: Yes, although of course TB’s evidence was also recorded evidence from the first trial which was edited. All of the evidence in the trial was the playing of recordings but for the evidence of the original informant. So it was edited as much as it could be but there were several passages deleted, many passages deleted which gave a full picture of the contamination concoction issue, as a result of the prejudice which it would introduce. That was one of the prejudices.

The undue weight issue: it is not just the fact that it is a 30-year-old giving evidence of something they purport to have seen when they were four; it is the fact that the jury is not seeing a four-year-old. They are seeing a 30-year-old and not the six or seven-year-old or the four-year-old that purported to have seen these events so many years before, and it is notable that the jury asked to see TB’s evidence again and they were in fact provided with a DVD of her evidence to play in the jury room. That is referred to at page 93 of the core appeal book. So the danger of undue weight being accorded to her evidence was even greater because of what transpired at the trial.

I might add in terms of giving undue weight to the evidence, there was an unreliability direction sought by counsel. Your Honours will not have this material but defence counsel did seek an unreliable evidence direction but her Honour - this is at pages – we can provide the material but for the benefit of my learned friend on 4 May 2016, page 156 is where defence counsel seeks the direction. On the following page, her Honour declined to give that direction on the basis that it was something that was within the jury’s knowledge as to unreliability. So that request was refused which makes even greater the prejudice in the case.

There was also the prejudice of requiring the respondent to answer a raft of uncharged conduct stretching back decades and that was particularly unfair in this case in circumstances where he had in 2000 very shortly after the end of the period of the alleged offending given a record of interview of almost an hour where he, according to police notes made 18 days later, he made strenuous denials in the record of interview. That is all we know from that one hour interview.

Subsequently, the police determined that the brief should not be authorised. One of the factors which was taken into account, according to the report, was that he had made strenuous denials, also, of course, the fact that TB and the foster mother had not supported RC’s allegations. So, in our submission, requiring him to answer so many allegations from so many decades earlier was particularly unfair because of the loss of that interview. Further, the tendency evidence was very, very confusing. I alluded to that earlier in terms of the - - -

KIEFEL CJ: This is not the way the Court of Appeal approached it.

MS BOSTON: The Court of Appeal did not determine the question, with respect.

KIEFEL CJ: It was raised but merely observed by them that it was raised by their Honours and not determined.

MS BOSTON: 101 was not considered at all by the court below.

NETTLE J: So, is this a notice of contention?

KIEFEL CJ: A contention point, yes.

MS BOSTON: It is considered whether - it is not a failure to consider it because it was not necessary to consider it.

KIEFEL CJ: It could uphold the decision of the Court on the ground for which you now contend which it did not determine.

MS BOSTON: I confess that we questioned whether we needed to and we determined whether it be wrongly or rightly that we did not need to because of the wording of the rule about failure to determine suggests some criticism of that fact. The issue is raised squarely in our written submissions. There is no prejudice, we would submit, to our friends.

KIEFEL CJ: Well, we will see what is said in reply.

MS BOSTON: It is certainly made clear in our submissions that we rely upon it. If notice is formally required, we would make application for late filing of such a notice.

NETTLE J: Can I ask you one question which is pertinent to that. All of the work of the Law Reform Commission that went into the concoction of section 137 originally was based around the Christie discretion and the conception of prejudice was the Christie prejudice of a jury reasoning improperly to guilt? Is there authority which suggests that it is now a way broader compass, such as would permit of the kinds of considerations you have referred to of unfairly facing things in the past or being prejudiced in cross-examination?

MS BOSTON: Unfairly prejudiced by things in the past is actually, I believe, emanating from the majority decision in Hughes v The Queen, in paragraph [17]. Obviously, this is obiter, the Court was not required to consider section 101 in Hughes but, without saying all of the prejudices which might arise, the majority sets out some of the prejudices which may arise and that includes - - -

NETTLE J: That is improper reasoning, though, of a kind which comes within Christie, all of those instances there, surely.

MS BOSTON: The final sentence:

And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.

It is clear that the Evidence Act has changed the common law in many respects and there is no reason on the basis of the text of the Act to confine the prejudices which might inform whether the section 101 test is met or whether the discretion under 135 or the mandatory exclusion under 137 should be enlivened.

NETTLE J: Thank you.

MS BOSTON: Just in terms of the confusion point, I do not want to overburden the Court in terms of going to the facts unnecessarily but just want to make clear that there may superficially appear to be similarities between what TB says about what happened at Shepparton, uncharged act B1, and what RC says happened at Port Macquarie, uncharged act C20. There was a lot of confusion which arose in the trial. At the original trial, defence counsel - - -

KIEFEL CJ: Was this a point actually taken in the Court of Appeal and not dealt with though because their Honours at paragraph 87 do not list what the vices are said to be? Was this actually a point taken, the confusion point?

MS BOSTON: The confusion point has been taken, yes, your Honour. But the specifics of counsel having been confused about it and the judge, I do not believe I specifically raised that but it is just to indicate how confusing it was - it must have been for the jury. That point was certainly raised. Defence counsel got mixed up between the two on the original trial. Both counsel got mixed up on the retrial. Her Honour even got mixed up at one point. What was the jury to make of it? The risk that a jury would also be confused about the evidence was very real in this case.

In fact, your Honours will see at page – this is a slightly different point but related about how the jury must have been confused – core appeal book page 89, line 17:

We’ve received a jury question which will be easily answered, although on one view of it it’s a little bit concerning. But the question is, “In [R’s] evidence does she ever talk about Charge 2, being in the bathroom with [T] and [the defendant]?” When I say it’s a little bit troubling, all I mean – what I mean is that everyone was at pains to point out that Charge 2 relied on [TB] and I think that’s pretty clear from the question trail.

So the fact that the jury was asking a question about whether RC gave evidence in support of TB at this point of the trial after they had already commenced their deliberations demonstrates how confusing all of these issues must have been for them and the directions did nothing - - -

KIEFEL CJ: We are dealing with this at the point of admissibility, not in the retrospective way to determine what the judge should have done in terms of admissibility, surely.

MS BOSTON: It is just to demonstrate - - -

KIEFEL CJ: It is either obviously confusing evidence at the point of admissibility or it is not, surely. The assessment must be whether it was open to a trial judge to make the ruling he or she did.

MS BOSTON: We would submit that House v The King principles do not apply.

KIEFEL CJ: I am not suggesting that. I am saying that you do not use everything that occurred later in the trial to determine the question of admissibility.

MS BOSTON: Well, I appreciate that we are not in the Victorian Court of Appeal but that is certainly not the way the law has developed in Victoria at least. What has developed in Victoria is that the course of the trial may shed light on whether the tendency evidence should have been admitted and the logic behind that is that it - why it is relevant that we know for a fact that the jury got confused, it gives further force to the argument which was made beforehand that it was confusing.

EDELMAN J: You are not relying upon this confusion by the jury as evidence that the jury were confused. You are just relying on it, in effect, as an example of a way in which it might have been predicted that confusion could arise.

MS BOSTON: Yes, your Honour. The unusual thing about this case, because so much of the evidence was recorded, the judge actually knew what the evidence was going to be. So her Honour had that advantage which would not ordinarily be the case.

KIEFEL CJ: Now, are we up to paragraph 9 on the outline?

MS BOSTON: Just in terms of the – before I get to the notice, the contamination issue, because it is relevant, in our submission, not just on the prejudice side of the ledger we respectfully adopt the – what the New South Wales Court of Criminal Appeal has held in respect of contamination and so forth in R v GM, which I provided earlier.

In that case the court considered how contamination and so forth may affect the question of significant probative value and at paragraph 111, Justice Hoeben, the Chief Judge at Common Law, concluded that the relevant question – this is after having gone through all of the relevant cases:

Does the evidence in this matter amount to a real risk of contamination or concoction so as to give rise to a competing inference sufficient to deprive the tendency evidence of significant probative value. Put another way, is there a competing inference to be drawn from the evidence such as to render the tendency evidence inherently implausible. In carrying out that evaluative exercise, questions of credibility, reliability and weight should be disregarded.

We rely upon the court’s reasoning and conclusion - - -

NETTLE J: Concoction is not credibility and reliability though.

MS BOSTON: Well, there have been a number of - some matters going to those issues would be, others - Hoch v The Queen and - - -

NETTLE J: Well, Hoch is a condition precedent because of the Hoch test, that there had to be no other reason.

MS BOSTON: Yes, but - - -

NETTLE J: That went with the abolition of common law.

MS BOSTON: Yes, it did. I believe it is in Hoch as well but in Murdoch v The Queen, which is in the joint book of authorities in a passage at 393 of the joint book of authorities, the court sets out a passage from the earlier decision of BSJ v The Queen [2012] VSCA 93; (2012) 35 VR 475. What the court there held is – and this, obviously Murdoch was post Dupas but BSJ was pre Dupas so it was still on the basis of Shamouil-type reasoning where you were to take into account reliability and credibility at the point of admissibility. Halfway down the paragraph - - -

NETTLE J: Paragraph which?

MS BOSTON: Paragraph 98 on page 393 - halfway down that paragraph in a passage from BSJ:

Deciding whether there is a “real chance” that concoction has occurred will ordinarily not involve any assessment of the reliability or credibility of individual witnesses. Rather, it entails a fact-finding exercise, in which the judge will consider what the objective record shows about matters such as relationship, opportunity and motive. These are matters which can properly be assessed by a judge, without usurping the function of the jury.

It does cite Hoch. I might have been right about that, at footnote 87.

BELL J: Hoch I think has been overcome by statutory provision in every jurisdiction in Australia. I am sorry, I may just be slightly missing something, but are you inviting us to adopt an approach to the possibility of concoction that would revive Hoch?

MS BOSTON: I do not believe it is an argument open to me in light of the decision of this Court in IMM.

BELL J: I do not believe so either. I am just wondering where this is taking us.

MS BOSTON: It is more just relying on the reasoning about the factors which - not necessarily being reliability and credibility – relationship, opportunity, motive, those sort of things, not amounting to questions of reliability and credibility.

NETTLE J: It is a semantic distinction which eludes me, I must say, but I thank you for the reference.

MS BOSTON: Thank you, your Honour. The alternative way in which issues of contamination and concoction and so forth might come into play at a significant probative value stage is that, for example, in this case TB was not a source independent of the complainant as contemplated in IMM, because IMM talks about basically that you need to have support, absent some special features, and here TB was not independent. That is another way of looking at it.

But whatever the test is – and we would assert that – we would submit, I should say, that the New South Wales Court of Criminal Appeal’s test is the appropriate test to apply, the correct test to apply, we say that that test is met either from the significant probative value side or because of the prejudice issue which I have already taken the Court to.

KIEFEL CJ: I think you have really dealt with your submissions in this area.

MS BOSTON: In terms of whether the Court would consider the question for itself or remit the matter for determination to the court below, I do not feel that I provided enough information about the evidence of contamination and concoction. If the Court were minded to consider the matter for itself, I would have to go into more detail as to the facts to fully put the – properly put the submission. Perhaps I might move on and see where we are at, at the end of the day.

NETTLE J: Do you mean concoction that - - -

KIEFEL CJ: I take it that you have divided the time because the Court rises at 4.15. That is why I have been asking you where we are going.

MS BOSTON: Sorry, your Honour.

KIEFEL CJ: You do have quite a lot of topics to cover and you should not assume that the Court is sitting on.

MS BOSTON: Yes, your Honour. Reasonable notice in writing was not provided as required.

KIEFEL CJ: Was this raised at all at trial?

MS BOSTON: It was. If I can take the Court to the notice, page 58 of the appellant’s further materials.

BELL J: I am sorry, what page was that?

MS BOSTON: Page 58.

BELL J: Page 58, thank you.

MS BOSTON: Now, pursuant to section 97(1)(a), tendency evidence is not admissible unless there is reasonable notice in writing. Section 99, a notice has to be given in court in accordance with the regulations or rules of the court. Regulation 7 of the Evidence Regulations 2009 sets out the form which the notices must take. Section 100 provides the court may on the application of a party direct the tendency rule is not to apply; effectively a waiver provision. No such direction in this case.

KIEFEL CJ: Where is there in the materials the point at which this was raised at trial?

MS BOSTON: Part of it was raised, your Honour, and it is partly - the fact that it was not fully ventilated is, in our submission, a product of the late service of the notice itself.

KIEFEL CJ: Which part was raised, simply the fact that it was given late?

MS BOSTON: No, what was raised was that it failed to identify – this is at pages – it failed to identify which charged and uncharged acts were cross-admissible in relation to which charges and for which purpose and it has made it impossible to respond to the notice in a meaningful way, is the way that it was put in the submissions.

In order to fully answer your Honour’s questions, I do need to set out what actually took place. The Court of Appeal delivered Mr Bauer’s first appeal with a judgment on 1 April 2015. The court criticised the Crown’s tendency notice and emphasised the need for the Crown to file a properly drawn notice for the purposes of the retrial.

Four months later, on 13 August 2015, the Crown filed an amended tendency notice. That is not the notice that your Honours have. It contained no references to the complainant’s evidence at the original trial, a recording of which the Crown proposed to have played and Table C differed from that which your Honours will have in that it only contained particulars 1 to 22. It did not contain particulars 23 and 24. The Crown subsequently failed to comply with the court direction to file witness submissions in support of its application.

KIEFEL CJ: None of this is before us, is it?

MS BOSTON: It is, your Honour. That is at page 139 of the respondent’s further materials. I do not necessarily need to take the Court to it but I rely upon it. I rely on page 51 of the appellant’s further materials and the respondent’s further materials at page 2.

Notwithstanding the failure of the Crown to comply with the direction to provide written submissions, the defence filed its own original witness submissions on 19 October 2015. Your Honours have those submissions. That is at page 111 of the appellant’s further materials and that is where the defence took issue both with the broad-brush nature of the notice and the fact that it had that failure to identify, as I said. Your Honours will see in those submissions that – I am sorry. I have taken your Honours to the wrong page. It was page 51 where the defence submissions were.

NETTLE J: Did you say 51?

MS BOSTON: Yes, 51. The defence said:

It is impossible to respond meaningfully to a tendency notice which is defective in such a fundamental way.

That was on 19 October 2015.

BELL J: I am sorry: was the burden of the complaint that the real inadequacy of the notice was that it did not, consistently with Velkoski - I am referring to the submissions filed at 113 of the appellant’s further materials – identify the distinctive features that were relied upon?

MS BOSTON: It was just too broad brush, yes, but that it did not specify, in line with Velkoski, which charges were cross-admissible for which purpose. So that was the source of the complaint.

BELL J: But we have moved on somewhat from Velkoski. I am just wondering where this point takes you.

MS BOSTON: Your Honours will see at page 58 the notice which was filed on the morning of the date set down for argument about tendency reasoning, the Crown filed a further amended tendency notice. It differed in a couple of ways from the previous notice. Firstly, it did include trial evidence transcripts. It also added particulars 23 and 24 in table C. That includes, your Honours will see, at 24, “Description of Conduct”:

Other occasions of sexual abuse [happened] on a frequent basis -

This is the morning of the argument. In our submission, when one looks at the notice it just does not make clear, as required, which charged and uncharged acts were cross-admissible in relation to which purpose. Your Honours will see paragraph 4, and it is:

to act in a particular way, namely:

1. to have a sexual interest in his foster daughter –
   

They rely there upon table B only, and:

2. a willingness to act on that sexual interest in respect of [RC] (Particulars 1 – 14 in Table C)
   

So only the first 14 particulars of that table C. It is completely then contradicted by footnote 1, which asserts that everything is cross-admissible against everything.

GORDON J: But were not these confusions resolved?

MS BOSTON: They were resolved in oral submissions. Mr Papas - - -

GORDON J: Yes. What is the problem?

MS BOSTON: The problem is that they have not complied with the requirement or admissibility of reasonable notice in writing. The importance of reasonable notice in writing is, firstly, to assist the court in knowing what the purported tendency is but also to put the defence on notice so that the defence can prepare proper submissions and make proper full arguments and developed case theory and to fully understand the way the tendency is put. The Crown just did not comply with those obligations in this case, in our respectful submission.

NETTLE J: But you knew after Papas had resolved the difficulties what the Crown were contending. You were still two weeks out from the beginning of the trial. If you had gone home and had a think about it and thought, “I have not covered points A and B,” you could always have gone back to the trial judge and said, “Wait, there is some more to come, and here it is”, could you not?

MS BOSTON: True. It was a very complicated situation in defence of - I should say there were, in the end, another eight trials and before we got to this trial there were another - before we got to the trial where he was ultimately convicted on the retrial there were another five trials. Defence counsel were not sitting in chambers reading novels.

BELL J: Presumably, neither was the prosecution and that might explain why there was some technical deficiency with the written notice but the matter was raised in a timely fashion and dealt with.

MS BOSTON: Well, this notice is still defective, still unclear.

KIEFEL CJ: Do you want to spend time on this given all of the other arguments that you have?

MS BOSTON: I will move on, your Honour. I will not take any time with severance given my friend said it really accepts it is more - - -

KIEFEL CJ: Yes, you should perhaps move to complaint.

MS BOSTON: My learned friend’s submissions about the timing of the complaint are incorrect. RC moved out of the foster home in June 1995.

NETTLE J: She went back a couple of times and there was some more offending on each - - -

MS BOSTON: Yes, your Honour, she did not move in with the [Fs] until 1998, so it was some two and a half years after she had moved out of the home. She had been – I do not need to go into the facts in too much detail but she certainly did not go straight from the – there is some uncertainty about the timing of the complaint but it seems – it is unclear whether the last charge happened before or after and it was two to three years after charge 17 and 10 to 11 years after the first charged act.

Really, the court below was correct to hold that the prosecution did not establish the asserted facts were fresh in the memory of RC. The court correctly set out the applicable test at paragraphs 107 to 108. There does not appear there is any issue about the principles which the court applied. The passage that the court set out from Pate v The Queen, it does not appear that the correctness of those propositions are in issue. They certainly were not in issue in the court below.

The effect of those passages is that whilst consideration of whether a memory is fresh is no longer to be confined to the time which has elapsed between the occurrence of the asserted fact and the representation, the effluxion of time will remain relevant and in some cases decisive and that thirdly, the greater the period that has passed, the greater the need for there to be some reason why that event would be fresh in the memory.

There is not much else to add to the written submissions, really. It is not asserted that there is anything incorrect about the way that the court below reasoned.

KEANE J: Well, do you submit that fresh in the mind cannot be established if the witness does not actually say “When I said this it was fresh in my mind”?

MS BOSTON: Certainly not, and that is not what the court below did either. The court took into account what was said and the circumstances surrounding what was said, including the delay. Certainly if a witness did say “It’s very fresh in my memory” that would be something that could be taken into account, but it is not required.

KEANE J: Could a witness say that? Would that be admissible, as opposed to just an assertion of opinion?

MS BOSTON: I am not sure about the answer to that - interesting question. Certainly in this case - - -

NETTLE J: It would be contemporaneous state of mind evidence, would it not?

MS BOSTON: Yes, it probably would be. Thank you, your Honour. I cannot see why it would not be able to be taken into account as to somebody’s state of mind. But in this case there was just nothing upon which the trial judge could properly find that the assertions were fresh in the memory. There is imprecision of the timing of the complaint itself. The manner in which it was extracted is relevant to the extent that it does not give any assistance to the prosecution in establishing that it is fresh in her memory. The witness at one point talks about pushing her, really had to push her – I should probably go to the evidence. It is page 37 of the appellants’ book of further materials. It is talking about:

she was sad about her real father that had died –

This is line 24:

she missed him and she missed having a real family. And then, you know, she was really upset and crying –

This is the context we are talking about being upset about her father:

and so I was pushing her . . . “There’s, you know, something I need to tell you about my foster family, something that happened while I was there”.

Over the page – she was very vague at that point. Further down, line 6:

it was very hard for me to get the information out of her at that point. She was crying . . . said that it was something that happened back at her foster family.

Asked:

“Well, what, did they mistreat you, what happened?”

Then she gives an account of her foster mother being mean to her, making her do lots of chores and going to “bed at 4 p.m.”, making her own dinner, and I should say that that was contradicted by the evidence of both TB and the foster mother. Line 18:

“Something that, you know, my father did to me”. And I said, “Well, what?” So she made me guess, and from her way that she was obviously distraught I eventually after a while said “Was it sexual harassment?” and she said “Yes”.

Further down:

I asked her what he did to her and she didn’t want to tell me. She asked me to guess. So I guessed a few things. There’s some words in my statement.

Obviously - - -

KIEFEL CJ: Why is the method of how this came out relevant to the question of fresh in the memory?

MS BOSTON: I suppose it is more in the negative. It does not assist the prosecution in establishing that it is fresh - - -

KIEFEL CJ: It is not that she does not remember it. It is just that it is difficult getting it out of her. How does that weigh on the question of whether it is fresh in the memory?

MS BOSTON: Well, it goes on.

KIEFEL CJ: It might have a lot – help her credibility actually.

MS BOSTON: It is more that – it is the witness who is asking the questions, “Did you toss him off; did you suck him off?”

KIEFEL CJ: Because they are leading questions. How does that affect “fresh in the memory”? Is it because she was not volunteering it?

MS BOSTON: In our submission, it is relevant to the question.

GORDON J: But the problem for you is that one of the critical matters about which she actually complains she volunteers – that is, the watching of the pornographic videos and having to relive and act out what she had seen.

MS BOSTON: That is the only piece of information she does volunteer.

GORDON J: But it is the one that is repeated and one that is the subject of the tendency evidence as well.

MS BOSTON: It is also effectively context evidence, going back to the discussion before, at most because it did not go directly to any of the charges, even charge 1, where at some point there was a suggestion that there was a pornographic video. Your Honours will see at the appellant’s book of further materials, page 3, line 28, she says:

I don’t know if it was this incident.

Then again at page 6 of that book – this is after she has given the general evidence about the pornographic video, says that the question by the prosecutor - - -

NETTLE J: It is more than context. This is evidence of at least uncharged acts of sexual offences demonstrative of a sexual attraction to the little girl and acting upon it.

MS BOSTON: I accept that. I withdraw the submission that it is only – it is really predicated on the – your Honour is right about that. If it is admissible as tendency evidence the complaint is supportive of that. I accept that. There were also inconsistencies in her account, and I am referring here to page 44 from our written submissions. For example, at page 39 of the appellant’s further materials, line 28:

Did he make you have sex with him or did he” – I used the word “finger”, and she said “No” at that point.

Many of the allegations related to digital touching and penetration at trial, so that was inconsistent with her evidence. She also said to AF that she was the first person that she had told about this. Yet RC testified – the references are in the written submissions – that she had already told another friend and that friend’s mother about the abuse when she was 12 years old. So, there are a number of inconsistencies which belie a finding that the assertions are fresh in her memory, in my submission.

In terms of the actual conduct alleged in terms of responding to the leading questions - put it that way – it is not at all clear what that is referring to; whether it is referring to which charged or uncharged acts. So, it was not referable. It could not be directly referable to any particular charge at all.

Section 137 - the court considered this at paragraph 113 and we rely on those matters. There were further matters raised which are not referred to, namely, that AF’s memory - it is apparent from the transcript of AF’s evidence that her memory of the conversation was very hazy and she was effectively relying upon her statement as to the evidence she gave and that is apparent, for example - the references are in the written submissions - not made a great deal of time before her complaint to the police so she did not have particularly much.

We otherwise rely on the written submissions, given the time. It has never been argued that a substantial miscarriage of justice was not occasioned if the evidence was erroneously admitted, so I will not address that issue. In terms of the cross-appeal, it does not appear that there is any dispute as to the relevant test that there is no presumption and it is just to be determined according to the facts and circumstances of a particular case.

We submit that the court below did reverse that burden for the reasons set out in our reply and in the original submission. Page 191 of the core appeal book, the court at paragraph 118 introduces what President Winneke said in Bartlett with “But” and:

In normal circumstances it would be proper to direct a new trial if there is evidence upon which a reasonable jury could, assuming a trial in accordance with law, convict. However the court has a discretion not to order a re-trial if there are circumstances which would render it unjust –

and there cites Fowler and, in our submission, what is said in Bartlett does involve a presumption and we rely on Justice Murphy’s observations in King v The Queen set out at paragraph 49 of our submissions as to there is no presumption in favour of a second trial being ordered where an appeal succeeds. The discretion of the court must be exercised in a consideration of all the relevant facts and circumstances. Further down in that paragraph:

I do not consider, for reasons I have expressed, that there should be any ‘ordinary’ course.

This is consistent with the Court’s decision in Fowler. In our submission, the test in Fowler has been misinterpreted in Bartlett and that error has flowed on to this case. In terms of the fact that the court below did impose a presumption, the court at page 192 of the core appeal book:

The circumstances in which the discretion will be exercised so as not to order a new trial will vary . . . may militate against ordering a new trial . . . might militate against an order for re-trial . . . might also dictate there be no re-trial.

In our submission, it is apparent from both the court’s judgment and the adoption of what was said in R v Bartlett that the court has adopted a presumption that there will be a new trial and it is critical in this case where the court reached that conclusion not without hesitation given the extraordinary history of the matter. That is fully set out in the written submissions, the history itself.

Unless there are particular matters which might assist we will just rely on what is stated there. Similarly, in respect of the costs argument, we will simply rely upon the written submissions. I note that I did not take the Court to the particular factors bearing upon contamination and so forth. I do not feel that I have fully explored that - I am in the Court’s hands.

KIEFEL CJ: How long would you take to deal with it orally?

MS BOSTON: To give the abbreviated version, maybe in 10 minutes.

KIEFEL CJ: All right then.

MS BOSTON: I rely on attachment A, which is the first document in the respondent’s book of further materials, page 2. This was actually an attachment to the defence submissions regarding tendency from 19 October 2015, but it was omitted inadvertently from the appellant’s book of further materials. We rely on that.

I do not propose to go through all of that. We just highlight four matters. In the 1999 to 2000 summer holidays, TB had a telephone conversation with RC’s friend [C] wherein [C] asked TB if she, TB, had said that RC had had sex with dad. This appears in some additional pages of transcript which have been provided to the Court, pages 442 to 445.

I do not propose to necessarily go to all of the evidence but it is apparent that we know at least that RC’s friend [C] has called TB - - -

GORDON J: Where do I find this? I am sorry to be slow but what are you referring to here? Is this on attachment A?

MS BOSTON: No; it is the additional transcript which has been provided.

KIEFEL CJ: It starts from page 286 and I think you are taking us to page 442.

GORDON J: Thank you.

MS BOSTON: This is in relation to an interview. TB had an interview with Department of Human Services workers following RC’s allegations, for an hour and a half. They raised with her her apparent assertion to RC’s friend [C] that [C] had asked TB, “Did you say that RC had had sex with dad?” and TB denies it.

The significance of this is simply that we objectively know but at least as of 1999 to 2000 TB is aware that it has been asserted that she had said that RC had had sex with dad. That was the 1999 to 2000 summer holidays. Then on 28 January 2000, that is when Department of Human Services workers spoke to TB for an hour and a half in light of RC’s allegations.

Your Honours will see reference to that in attachment A on the second page, and I should say not all of this evidence was before the jury. I can go individually through which bits made it to the jury and so forth, but it is not specifically relevant whether there is evidence of contamination.

In 2000, TB made – learned from the police that RC had made an allegation about something of a sexual nature having happened in Port Macquarie between the respondent and RC. This is apparent from the appellant’s book of further materials at page 87. I am sorry, that is wrong. It is at the respondent’s book at pages 86 and 87. At the bottom of page 86 the statement is there read out to TB in her evidence. What she said was:

“I have been informed by police that [R] has made some allegations against [the respondent], my father that she was sexually assaulted by him. At no time have I ever known from my father . . . to have sexually assaulted RC, and RC has never mentioned anything of the kind to me at all.”

And then further on down the page, line 9, this is a statement:

“From speaking to police, I was informed that [R] has made a sexual allegation against my father whilst we were in Port Macquarie in 1995. I did go to Port Macquarie with my family in 1995, but at no time did I see or witness my father do anything to RC.

So, we know for a fact that she knows at least that there have been allegations of some kind of sexual incident in Port Macquarie.

BELL J: This material, you tell us some of it was before the jury and some was not.

MS BOSTON: Yes.

BELL J: You told us earlier that part of the suggested prejudice faced by your client was the inability to cross-examine TB about matters of possible concoction or collusion. That does not include this material surely?

MS BOSTON: That is true. It is more - - -

BELL J: So this was material that was available to test TB before the jury.

MS BOSTON: The statement was before the jury.

BELL J: Yes.

MS BOSTON: What was deleted was what she had said about her own allegations.

BELL J: Yes.

MS BOSTON: That did not, for obvious reasons, make it before the jury. Really, for present purposes, I am just trying to set out some of the main matters which demonstrate this was - - -

BELL J: Just so I understand, at the point where the judge was asked to rule on the admissibility of TB’s evidence and the associated application to sever the indictment, was there some application that put together all of this evidence so that the trial judge was looking at it and the trial judge was looking at all the evidence that is set out in summary form in table A. Is that right?

MS BOSTON: Attachment A was before her Honour. This attachment was the attachment to the defence tendency submissions.

BELL J: Yes, all right.

MS BOSTON: It does not specifically refer to the [C] evidence but that was before her Honour as well. The other matters are all set out in there. One other piece of information is at pages 32 to 33 of the appellant’s book of further materials. This is where there is a meeting in Geelong between the two women:

You spoke about the allegations against [Mr Bauer]?---Yes.

Is that right?---Yes.

Are you saying – I will just ask you, with [R], did she go into detail about her allegations against [the respondent]?---No, no.

All right?---The only thing that was in – well, not really in detail was the fact that she had told me that yes, he was in her bed that night when I told mum. That’s the only thing that she spoke about.

This is.....with uncharged fact B1, the incident at Shepparton. We know she has that piece of information as well. Often evidence - the contamination and concoction and so forth is evinced by similarity of allegations. Here there is not a similarity specifically of allegations, but what there is is that these pieces of information that she has had have formed – that is the information that she ultimately gives, these four pieces of information.

KIEFEL CJ: Is it concoction or credibility that you are really talking about?

MS BOSTON: It is contamination. All of them were raised. All of them were relied upon, whether it is concoction or merely contamination. The risk of contamination, we would submit, is particularly significant given the lengthy delay and the way that one’s memory over such a lengthy time behaves.

But, in our submission, those four pieces of information have effectively – it is notable that in respect of Port Macquarie, all that TB says is that she has heard voices. She does not go into any detail about what has actually happened. In respect of the Shepparton incident, it is effectively – it is in line with what she has been told by [C] that [C] asked TB if she had said that RC had had sex with Dad. So, in our submission, there is a real question about contamination and concoction. Unless there are any further issues I can assist with, those are our submissions. May it please the Court.

KIEFEL CJ: Thank you, Ms Boston. Yes, Mr Kissane.

MR KISSANE: Thank you, your Honour. Just in relation to this 101 point and the impact that contamination has upon it, can I firstly take the Court to page 180 of the core appeal book where the court examined this issue although the court does not, as was pointed out, go on to make any determination in relation to section 101. The court indicated that they had examined the tables that my learned friend has referred to, at line 42:

An examination of that evidence provides thin support, in our view, for the proposition that RC’s evidence was the product of contamination, concoction or collusion.

That is all, as I understand it, the court found in relation to that. In relation to the ruling of the learned trial judge, I think I was looking at the wrong ruling when Justice Gordon was asking me questions earlier, but in the third ruling at page 258, at line 19, her Honour deals with – says that she has:

conducted an examination of the proposed evidence from TB having regard to her statements to police, her evidence at committal, and her evidence at the first trial, as well as the evidence from RC. I am satisfied that there is no real possibility of contamination or collusion, principally because RC made the statement to police which outlines all of her allegations in 2000, at a time when no other alleged victim was known to her or, indeed know to anyone in authority.

Then her Honour goes on at page 259 in any event to find that it is not - in “a single complainant trial” contamination, possibility of contamination, she says is not relevant and then her Honour goes on to consider, in relation to TB, and I think this is the part I missed this morning, at line 16 of 259:

Having found that the proposed tendency evidence of TB is of high probative value, I turn to consider whether the probative value of her evidence outweighs any prejudicial effect on the accused.

Her Honour obviously left out the word “substantial” there, but nonetheless she references section 101(2) in the footnote. She says that her Honour finds that she is:

satisfied . . . for the same reasons advanced in Ruling No. 2 -

That is the probative value substantially outweighs the prejudicial effect. Her Honour then deals specifically, commencing at line 23:

Senior counsel for the accused submitted that an additional prejudice arises because of the fact that TB also makes allegations against the accused and it cannot be put to the jury in the trial involving RC alone that TB has a motive to lie on the basis of her allegations without introducing that prejudicial material to the jury. In my view, that is a forensic decision for counsel.

In our submission, those matters were covered by her Honour and the Court of Appeal was alive to them. The only finding in the Court of Appeal’s judgment is that there was thin support for any argument about concoction, collusion or contamination. They are the only matters in reply.

KIEFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow for pronouncement of orders and otherwise to 10.15 am.

AT 4.11 PM THE MATTER WAS ADJOURNED