Jackmain (a pseudonym) v The Queen & Anor [2020] HCATrans 149 (24 September 2020)

Last Updated: 30 September 2020

[2020] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S153 of 2020

B e t w e e n -

JACKMAIN (A PSEUDONYM)

Applicant

and

THE QUEEN

First Respondent

ATTORNEY GENERAL FOR NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE AND BRISBANE BY VIDEO CONNECTION

ON THURSDAY, 24 SEPTEMBER 2020, AT 2.13 PM

Copyright in the High Court of Australia
MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with MS J.L. ROY and MS F.K. GRAHAM. (instructed by Aboriginal Legal Service (NSW/ACT) Limited)

MR L.A. BABB, SC: If the Court pleases, I appear for the first respondent with my learned friend, MS B.K. BAKER. (instructed by Office of the Director of Public Prosecutions (NSW))

MS K.N. PHAM: May it please the Court, I appear for the second respondent. (instructed by NSW Crown Solicitor’s Office)

NETTLE J: You are seeking leave to intervene, Ms Pham?

MS PHAM: No, that is incorrect. We are already a party in the Court of Criminal Appeal, so we are also a party in the special leave application.

NETTLE J: Thank you. Mr Game.

MR GAME: If the Court pleases. Before the trial judge – I can take your Honours to it – at page 22 was an application to lead tendency evidence, tendency to establish a propensity to make fabricated evidence of sexual assault. One sees that at paragraphs 34 and 35. Then at page 41, 146 to 151, there are some significant observations about the nature of the trial that would unfold if the evidence were excluded and then at 45 the ruling in which there was a finding of that tendency:

to make false sexual assault allegations –

then the evidence of part of section 97, that is to say was:

significantly probative and is admissible.

That finding was not disturbed on appeal. As you see section 293 operated to.....it and the other arguments were dismissed.

Now, your Honours, if one goes from there to the document which sits behind our reply at page 220, that is a transcription of a document which is the subject matter of what is described as “incident 11”. That is a false allegation involving invented people, invented solicitor, offender and doctor of high specificity concerning allegations of sexual assault involving treatment from a doctor called Dr Rhode, who does not exist, and indicating a complexity of thought.

According to the ruling of the Court of Criminal Appeal that is caught by section 293 but the prejudice can be met by the jury being told that that is a false letter, not seen letter, that the complainant was attacked by a man and that excises it entirely of the tendency and is an entirely different thing, particularly in a case like this where there are allegations of sexual assault and assault and not only that, allegations of assault involving assertions in respect of injuries and medical treatment, and that takes us ‑ ‑ ‑

NETTLE J: Mr Game, as I read Justice Leeming’s judgment he recognised that to do that would not be as beneficial for the accused as it would be to put the letter before the jury, but, nonetheless, the disadvantage would be ameliorated to such an extent as not to make the trial so unjust that it should be stayed permanently.

MR GAME: That excises the case entirely of the tendency which sits at the heart of it. So that it is actually positively misleading to say that there are false allegations in respect of assault. In fact, it implies that there is nothing more than that and it is misleading and it would be quite misleading for the complainant to be giving evidence about this on the assumption that these were just allegations of assault. But it strips the case out of the critical thing which is the tendency to make false allegations of sexual assault and it could not possibly, in our submission, meet the prejudice to, as it were, say, allow the case to proceed on the misleading, positively misleading basis that this and incident 12 were just incidents relating to assertions of physical assault.

I will come back to that passage in the judgment, but if I take your Honours then to document number 12 which is page 222. This one is at a time when the complainant was 22 years of age and it involves an allegation involving a person called [L], which is the same name as an earlier one. This one here involves being taken to hospital, medical treatment for internal injuries involving sexual assault, all of which was invented. Now, in this case against the accused are allegations of physical injury – sexual assault and physical injuries. So this one – and one sees there in that paragraph it says:

LATER CONTACTED A FRIEND –

taken to the such‑and‑such a hospital, “ambulance”, “internal injuries”, police were notified by the hospital. All of that was false. According to the Court of Criminal Appeal – and I will come back to that in a moment – actually, I can take your Honours to it now. It is page 150 in the application book, paragraph 221.

GORDON J: Before you get to 221, are you going to deal with 219, Mr Game?

MR GAME: I beg your pardon, your Honour. Yes, sorry, 219. Yes, your Honour. Did you say paragraph 219 or ‑ ‑ ‑

GORDON J: I did, on the previous page.

MR GAME: Yes. So, in paragraph 219 ‑ ‑ ‑

GORDON J: Is that not a big hurdle for you? In other words, even if one assumes for the moment that the prejudice – the unfairness is as identified and subject to a tension to ameliorate the prejudice, in a sense it is difficult to assess it because one does not know what is going to happen at trial.

MR GAME: But, your Honour, the whole point of this is that according to the judgment of the Court of Criminal Appeal the critical thing in the whole case is excised. The critical thing in the whole case is the propensity to make false allegations of sexual assault. All that is being offered up here – I will take your Honours to one more thing before I come back to this. If your Honours look at page 223 of the application – can I come back to this passage in a moment ‑ ‑ ‑

GORDON J: Do you mean paragraph 223?

MR GAME: No, no, I will come back to those paragraphs in a moment. I am just going to show you what is on page 223 of the application book.

GORDON J: I think ours do not go that far, do they? You mean in the letters?

MR GAME: No, this is not the letters. This is the directions that would be given to the complainant. Now, these are directions, it is said - no reference at all to sexual conduct. The second‑last paragraph:

You should answer these questions as truthfully as you are able, but you should not refer to any sexual conduct –

So that is a letter of comfort, in effect, that she can deal with questions on the assumption that she will never be taken to the details, that any falsity is just a falsity about assaults. That is not telling the whole truth. That is a completely misleading trial and that affects the integrity of the court and that should never be allowed to happen ‑ ‑ ‑

EDELMAN J: Mr Game, if your submissions about the decision in M v R were not correct, or were not accepted, do you say that directions to the complainant could ever be given in this way or in any other way which would be sufficient to make the trial fair?

MR GAME: Absolutely not, your Honour, because what has been excised is the critical thing and she has been invited to not tell the whole truth.

EDELMAN J: So it is not so much the fact that there is difficulty with these directions, it is the fact that it is impossible for any directions ever to be given that could ameliorate the prejudice of section 293 if your construction is not accepted?

MR GAME: That is right. But when I say impossible, impossible in this case. I am not saying impossible in every case.

EDELMAN J: Yes.

MR GAME: I mean impossible in this case. It is not possible to excise out of this case the tendency and then say well, let us see how it goes if she just gets questions put to her about saying things that are not correct – not a tendency to say things that are not correct, saying things which are not correct about an assault in a case where we have allegations of assault and sexual assault and sexual assault involving injuries where the material which is excised is material about inventions in respect of injuries, including admission to hospital.

NETTLE J: If that is so, does it go to anything other than your application for permanent or temporary stay?

MR GAME: Yes, your Honour, it goes – so this document here, for example, goes right to the question of if we are wrong on the construction of 293 whether or not this can stand up in view of the – we say the significant impairment of the integrity of the court conducting such a trial, both in terms of the narrower view which I might say that - the Fardon kind of view of involving the integrity or the impartiality of the court, but also the Nicholas idea of a trial in which a person is able to defend themselves, and this is ‑ ‑ ‑

EDELMAN J: Mr Game, sorry to interrupt, is that not really the only point that it comes down to because if the section does not bear the construction that you advocate and if that submission were not accepted, in other words, if it were not to sufficiently impair the integrity of the court to allow the trial to go ahead, there could not be any residual basis to order a permanent stay, could there, because the only residual basis would then be to say well, doing that which Parliament requires the court to do, in a way which does not impair the institutional integrity of the court, could amount to sufficient to allow a permanent stay.

MR GAME: That depends on the operation of section 293 and the court has held in this case that 293 does not apply to a stay application. There is a case called Morgan that says it does not apply to an appeal. So there is a real uncertainty as to what might happen on a stay application. But if you go back to these passages – we do say that there is more than a credible argument that section 293 can be read down such that that evidence that I just took you to is not caught by the exclusion in subsection (3) and if it is it is picked up by the exception in subsection (4).

So we say that there are significant arguments at each point, that is to say the point of construction, the point of issue about constitutionality if we lose on that, and at the point of stay. So we say that one cannot get away from the significant arguments at each step and that they are inescapable and that this case is a case par excellence and the idea that, as it were, we would go back and see how the trial went is all based on the assumption that the tendency to give false evidence about sexual assault is excised from the trial. But that is at the centre of our defence and, as I just put to you, it is possibly ‑ ‑ ‑

GORDON J: Mr Game, can I just ask a question about that?

MR GAME: Yes.

GORDON J: I had understood Justice Leeming’s paragraphs at 217 and following in a sense not to go so far as you have just put it, that is that the tendency would be excised from it. I thought what he was saying was, especially in 219, that in a sense what was going to unfold was unknown – (a) because of the way in which the Crown was going to put its case arguably and, (b) because of the way in which the evidence would unfold in any event. It was not put as high as you are putting it, was it?

MR GAME: Yes, your Honour, but also there is this passage one needs to go back - your Honour, there is some uncertainty about that. But it is not uncertainty that would prevent the court from taking this case because the parties actually do not know what would happen on the case going back to the court. The Crown says that all that would happen with the complainant is that she could be asked if the document, which is the document being document 11 that I took you to, whether she wrote it. Well, we know that she wrote it and they could find out the answer to that question, by asking her, in five minutes.

If you go back to paragraph 92, the court is saying that on the application that section 293 does not apply to the stay application. So there is real uncertainty as to what actually might happen and there is, as it happens, a judgment of Justice Hayne in HG that doubts that and actually says that that is not correct. But if we went back, the first thing is we would be in real doubt as to what it is that was actually being argued about and the Crown’s stated position effectively would limit it to the mere question about whether document 11 was written by the complainant.

But if you go back to paragraph 217 it is this – sorry, just dealing with 219. The answer, one way or the other, in 219 could not make any difference to the outcome because an elaborate attempt to make a false accusation about unlawful conduct does not get close to the tendency. The tendency is the tendency to make false allegations of sexual assault and his Honour is deliberately making it clear that this is not about the tendency to make false allegations of sexual assault. Moreover, I do not think 217 and following is even about the stay application. It is about, at the trial, being able to put to her that she has lied on some other occasions.

GORDON J: It is about assessing prejudice. It is trying to work out whether or not the unfairness that has been identified in the abstract is going to come home in reality.

MR GAME: But, your Honour, the prejudice has not been identified in the abstract. The prejudice is real. We cannot lead evidence of a tendency to make false allegations of sexual assault with detail, with colour and detail and specificity of the kind that you just saw, and in circumstances where the court will be conducting a farce and the farce is that this witness is not telling the whole truth. The court will be a party to that farce.

The example that was given by the Court of Criminal Appeal that would narrow this kind of approach is from a completely different kind of situation. If you look at paragraph 227, for example, that is the example and that is where you excise other allegations and that does not affect a person’s – the taking of the oath at all, not for a minute. That is a red herring and a misleading one at that.

I do say, strongly, that this trial would actually be a travesty. It would be a travesty to conduct a trial in which everybody was pretending – and I mean pretending that this witness was just talking about – there were two circumstances involving lies about some violent assault without any specificity whatsoever. Now, that is to mislead and that is the trial that is being contemplated by the Court of Criminal Appeal.

GORDON J: So 225 is not an answer?

MR GAME: No, your Honour, not enough at all because you judge the jury in this case saying that there is a serious claim that the man – some man committed violence and that she pleaded guilty to that. That does not get to the heart of this at all. It does not get close, remembering that if one looks – in fact, it is a point of distinction so the jury might think she might lie about some question of violence, but she is not going to lie about something as specific as suffering injuries and being taken to hospital and the like. In fact, this would actually work against us. This would work against the applicant because it would, in the minds of the jury, be a point of distinction and that is why I say it is dreadfully – and I use that word meaningfully – it is dreadfully misleading to ever allow a trial to proceed on a basis such as this.

EDELMAN J: Mr Game, although you have been focusing on I think your proposed grounds 2 and 3, presumably all of those matters feed in also to your proposed ground 1 which is concerned with the evidentiary ruling and the construction because of what you might say is the unlikelihood that Parliament would have intended such consequences.

MR GAME: Yes, your Honour, so yes, I ‑ ‑ ‑

EDELMAN J: Sorry, could I just ask you about ground 1, though?

MR GAME: Yes, your Honour.

EDELMAN J: Is that a ground upon which the Court of Appeal had jurisdiction? I understand from their decision that they - Justice Leeming concluded that the Court of Appeal did not have jurisdiction in relation to ground 6 because it was a mere evidentiary ruling. Why would that reasoning not also apply to your proposed ground 1?

MR GAME: Your Honour, the reason is – and there is a decision of Justice Spigelman on that because this has a very different character because this is bound up with the question of constitutionality. You have to get to this before you get to the constitutionality argument, so you cannot ‑ ‑ ‑

EDELMAN J: But that is your second ground.

MR GAME: Yes, your Honour.

EDELMAN J: I am just talking about your first ground by itself.

MR GAME: If it was just there by itself – it is not just there by itself – you would have to decide the first ground to get through to the second, your Honour.

EDELMAN J: I see.

MR GAME: It is a process of reasoning. You have to go through the first one. You cannot avoid answering that question. Your Honours, if I have time I will have to come back to that part of the judgment, but if you look at page 171, section 293, Justice Leeming himself argues compellingly in favour of the construction that we put but then says precedent rules against it. But at 293 the only words in subsection (3) that have the potential to chop us out are the words “or not” in subsection (3)(b).

These are things about things that did not – 11 and 12 are about things that never happened – fictional people – and this section is a section which was to address inflammatory allegations being put to a person, and we say it is quite a straightforward matter to read down “or not” to be the negative of an assertion about something that did happen, so some other sexual activity, for example, and a denial would then be caught. So we say it is quite straightforward to read that down.

If one goes to the judgment of Justice Leeming, one sees this at pages 130 to 131, but we develop our arguments beyond that. That is in paragraphs 152 to 154 and following. It is not that different from R v Miller which was decided by Justices Keane, Williams and Philippides, which is referred to on 132, except the words “or not” do not appear in the exclusion, but we have an additional argument under subsection (4) which is the exception to the exclusion. So the exception to the exclusion is that if the connected set of circumstances is the tendency to make false allegations of sexual assault, then that also should be read liberally and can be sustained. So there are those arguments.

If I could just come back to this passage that your Honour Justice Gordon took me to in the judgment of Justice Leeming, what 217 is saying is it is kind of traversing the whole thing about the accepted finding of tendency because 217 is about all of the incidents apart from 11 and 12 which go to make up the tendency, and they cannot be excised like that. So too with 218. That ceases to be an allegation of sexual assault and becomes the letter about being attacked by a man.

Then 219, as I said, no answer to that is going to change the position. Then 221 – and I should say you cannot ignore the other 10 complaints when considering the inclusion of 11 and 12 in a limited respect. Then 221 is all about number 12. So I just – my time is up. The numerous issues raised by this case and the long jurisprudence are not going to be quelled by letting this case go back to the District Court for further arguments in a state of sheer uncertainty as to what will happen and a level of confidence that the very thing which is the tendency to make false allegations of sexual assault will not be a factor and will be excised.

NETTLE J: Mr Game, before you go, is the trial still beginning next Monday?

MR GAME: It is supposed to begin next Monday, yes, but we have a stay application obviously that we would make if we receive a grant of special leave.

NETTLE J: .....District Court judge.

MR GAME: No, we have an application before this Court now.

NETTLE J: Yes, you have, but do you also have one on foot before the District Court judge?

MR GAME: Yes.

NETTLE J: Yes, thank you. Mr Babb.

MR BABB: Your Honours, this trial is set to commence next Monday, and, in my submission, it should proceed. It is simply not possible to assess the extent of any unfairness that may be occasioned by section 293 in the absence of seeing how the complainant will answer questions and what directions the trial judge will give. The Crown has conceded that section 293 does not prohibit cross‑examination of the complainant about her having made false allegations of being seriously assaulted and it is just not possible to predict what her answers will be to such questions.

My learned friend has said that critical is the tendency to give false accounts as to sexual assault. What we say is that what is critical is the falsity of the complainant’s statements if they are accepted as such by the jury, and that remains to be the subject of evidence. Removing references to sexual assault does not remove the fact that the jury will have before them, as Justice Leeming outlines at paragraph 225, cross‑examination of the complainant about giving a false report to police, if she accepts it, about preparing a false letter, the summing‑up of the judge will direct them to that fact and that they bear in mind that the complainant has previously lied in the assessment of her evidence, and previously lied about a serious claim against a man inflicting violence upon her, that she pleaded guilty to making a false report, and the jury must assess her evidence concerning the events in 2014 with that in mind.

My learned friend has pinpointed that there is reference in the statement to attending hospital and complaining of serious injuries. That could still be led. In relation to proposed ground 1, the construction ground, M v The Queen, in my submission, is clearly correct as a matter of construction.

EDELMAN J: Mr Babb, what do you say a trial judge would do if a jury came back with a question?

MR BABB: In relation to the assault, your Honour?

EDELMAN J: Yes.

MR BABB: We say in our submissions that, subject to discussion with the defence, there could be directions about not speculating about the nature of the assault and that could be given during the summing‑up or in response to a question, and is a conventional direction ‑ ‑ ‑

EDELMAN J: So the jury would basically be told not to speculate about the very thing that the defence wanted to put before the jury and the very thing that the jury wanted to inquire about?

MR BABB: If they had such a question, they would have to be, your Honour, because in any criminal trial when the evidence is finished, then a jury must be told not to speculate about anything that is not before them.

EDELMAN J: Do you accept Mr Game’s submission that that consequence might be one matter that would militate in favour of Justice Leeming’s construction of section 293?

MR BABB: Not necessarily, your Honour. Jury questions may go to issues related to 293, the same as they might go to other evidentiary provisions that prevent full exposition of facts in a case. With respect, it neither matters whether the limitation flows from relevant evidence in relation to the prosecution or the defence case, and it is a common feature of criminal trials that the Evidence Act may limit the evidence that can be placed before a jury. The passage that my learned friend took you to with Justice Johnson’s – of those limitations that are common in criminal trials, with respect, was quite correct.

NETTLE J: Mr Babb, presumably, in view of Justice Leeming’s judgment, the Crown would accept that Mr Game’s preferred construction of the section is plainly arguable.

MR BABB: It was contestable, your Honour, perhaps at a point 27 years ago when M v The Queen was decided but, in my respectful submission, following M v The Queen and the passage of time, it has long been acknowledged as settled when one takes into account the legislative history of this matter. It is clear that the legislature intended that section 293 have the wider operation that it has consistently been held to have since M v The Queen, and I say that because the section was recast in 1999 from an equivalent section 409B to a new section in a new Act, the Criminal Procedure Act. So it moved from the Crimes Act to the Criminal Procedure Act with a raft of changes to the criminal law procedure and criminal law of sentencing, and it was restructured in basically the same form at a time after M v The Queen and a series of cases, a Law Reform Commission report that dealt with the question of whether it should be reformed to deal with this exact question of falsity of evidence and a Model Criminal Code Officers Committee report to the Standing Committee of Attorneys‑General about this particular section.

My submission is that the protection of complainants in sexual offences cases was such a politically sensitive area, the Executive Government in light of those reports and those significant cases was clearly aware of the issue concerning the rule and its application to fabricated evidence and the section was recreated in basically the same form and the second reading speech of the Attorney‑General who must have known that shows that it would have been astonishing if ‑ ‑ ‑

EDELMAN J: Mr Babb, there is no suggestion that anyone has positively relied upon this construction of the section as opposed to what is now said in light of Justice Leeming’s construction to be the proper or better construction. There is no suggestion that over the last 30 years a decision has been made between those two constructions and the former has been preferred.

MR BABB: No, that is quite so, your Honour.

EDELMAN J: So, in those circumstances, why would it be the case, if Justice Leeming’s approach is correct, that the courts should effectively say well, there have been 30 years of injustice, we should continue that injustice for the sake of consistency?

MR BABB: No, that is not what I would be submitting. I would submit, your Honour, that the wider interpretation has been settled by the 30 years of acceptance of the decision in M v The Queen. Your Honours, in relation to the proposed ground 3, the permanent stay ground, the test for the granting of a permanent stay is a high threshold, and necessarily so. That is partly because of the recognition that trials proceed in an unpredictable way, that it is difficult to accurately reflect and predict now that there will be manifest unfairness that a trial judge will not be able to do anything about, and that the Court of Criminal Appeal correctly found that that threshold was not crossed.

Of course, particularly in circumstances where there can be cross‑examination of the complainant about the central aspect, the critical aspect of the falsity of a report to police and an alleged falsity in a letter, the core of the attack on the complainant’s credit, namely that she has previously made significant false allegations to police.....adduced.

My learned friend indicated that the Crown’s stated position was something to the effect of that there could not be cross‑examination on the voir dire except to the question of authorship of the letter. What was actually responded to the applicant’s trial legal team was that;

the Crown does not object to cross‑examination of the complainant as to the authorship of the solicitor’s letter. If you seek to cross‑examine the complainant on any further topics, the Crown requests the nature and scope of those topics be set out . . . so that there can be a ruling as to the scope of the complainant’s evidence on the voir dire –

which is quite a different thing in relation to a voir dire or a Basha inquiry which is a discretionary measure that the trial judge would need to consider.

There is real substance in the continuing availability of a – the possibility of a permanent stay. The trial judge, who it is clear will be the same trial judge who made the initial rulings, is clearly aware of possible unfairness to the accused and he could stay the proceedings in the event that he found that the high threshold for a stay was met, and then further in the event that the matter was not stayed, there is relief at the end in the event of conviction, all of which factor into the submission that the inherent powers to determine whether – sorry, I lost my train of thought. But collectively those are available remedies, and, in my submission, there should not be the grant of special leave in this matter.

I will read out a letter that my learned friend said that I have not correctly quoted from - the response of – I will read out to your Honours the response to a query from the trial team:

Dear Ms Gidlow

We advise that the Crown will make the following witnesses available on the voir dire:

The complainant’s mother . . .

The Officer in Charge . . .

DPP Solicitor, Ms Brown (if necessary).

In respect of the complainant, we note the comments of Wilson J in Jackmain at [248] (with whom Johnson J relevantly agreed) that “consistent with the purpose of [s. 293], any voir dire should ordinarily be conducted on the documents. It would be wholly inconsistent with the intention of the legislature in introducing s 409B of the Crimes Act and maintaining its operation in s. 293 of the Criminal Procedure Act for a complainant to be required to give evidence viva voce and endure the sort of humiliating and distressing cross‑examination that the Parliament sought to prevent.”

Nonetheless, we note there is uncertainty in the evidence of the complainant in respect of the solicitor’s letter (Jackmain at [218] and [219]). Accordingly, the Crown does not object to cross‑examination of the complainant as to the authorship of the solicitor’s letter. If you seek to cross‑examine the complainant on any further topics, the Crown requests the nature and scope of those topics to be set out, consistently the purpose of s. 293, particularly s. 293(8) of the Criminal Procedure Act, so that there can be a ruling as to the scope of the complainant’s evidence on the voir dire.

NETTLE J: It sounds like your summary was tolerably accurate, Mr Babb.

MR BABB: Thank you, your Honour. Unless I can assist the Court further, they are my submissions.

NETTLE J: Thank you. Ms Pham, do you seek to be heard?

MS PHAM: I am content not to. I am in the Court’s hands as to whether oral submissions as to the constitutional questions would be of assistance.

NETTLE J: I do not think so. Thank you very much.

MS PHAM: Thank you. Mr Game.

MR GAME: The critical part about that letter was that it would bring them within the exceptions in section 293(4). That is the substance of that letter and that gives no joy beyond that which is conceded in respect of the authorship of the letter.

The critical thing that the Crown said was this. They said that the critical aspect of this is the falsity of items 11 and 12 and the jury would know about that. But the trial judge described a trial so conducted as being an affront to justice, and that is what it would be, because it would exclude – excise from it the thing that one had to get to which was the tendency to make false allegations of sexual assault, and all that is being considered is a credibility.....not even a tendency to make false allegations of assault.

The idea of a jury direction, a direction not to speculate, is worse because a direction not to speculate will make them think it is not to do with sexual assault. The reference to going further and saying suffering injuries, so one cannot say what those injuries are even though what those injuries are said to be is the very thing that is the subject of the case.

So, your Honours, as I say, nothing will be achieved in terms of quelling this by sending it back for a trial in which at the best what is being proposed by the Crown and Justice Leeming’s judgment is a trial in which
one waits and sees as to whether a mere credibility attack and nothing more produces, what, a favourable outcome, where we have taken away things from us that are completely external to us.

When I say “external”, they are things that have no connection with us which are also allegations of sexual assault concerning other people at other times over a long period of time. There is nothing more that one can put forward before the court other than the tendency itself, which has been excised, that is going to excite a stay. There is still the argument about what it is that the complainant would be cross‑examined upon at the stay application and if it be, as the Court of Criminal Appeal says, that she is cross‑examined on these allegations, then that is a question itself about which one has to construe section 293. That is a question that has not been resolved and, as I say, some authority of this Court points against it.

But lastly I will say this, your Honours. If you look at page 172, page 172 in the middle of the page after (f) says:

and if the probative value of the evidence outweighs any distress, humiliation, embarrassment that the complainant might suffer as a result of its admission.

Now, that is the purpose of this provision and that is all that happened when it was carried from one piece of legislation to another piece of legislation and nothing is being drawn from that. The purpose of it is not to exclude the humiliation from giving evidence about perverting the course of justice in respect of allegations of sexual assault, and that is what would happen in this trial. What would be said immediately to the complainant upon administering the oath would be a letter of comfort and an invitation to mislead. The Court should, in my respectful submission, take this case.

NETTLE J: The Court will adjourn briefly to consider this matter.

AT 2.56 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.05 PM:

NETTLE J: The Court is not persuaded that an appeal on either of grounds 2 and 3 would enjoy sufficient prospects of success to warrant the grant of special leave to appeal. By contrast, as is demonstrated in the reasons for judgment of Justice Leeming in the Court of Criminal Appeal, an appeal that raised the issue identified in ground 1 might properly be regarded as falling into a different category. A potential obstacle to ground 1, however, is that the Court of Criminal Appeal appears to have determined that it would have lacked jurisdiction to entertain an appeal from an interlocutory ruling on the admissibility of evidence standing alone because, viewed independently, ground 1 is a ruling on the admissibility of evidence.

Furthermore, as this Court has observed repeatedly, it is highly undesirable to interrupt criminal proceedings by applications for special leave for the purpose of challenging rulings on questions on the admissibility of evidence, not least for the reason, as Chief Justice Brennan and Justices Gummow and Kirby observed in R v Elliott, that they delay trials and are likely to produce miscarriages of justice unrelated to the rulings in suit.

Certainly there are exceptional cases where the interests of justice warrant the exceptional course of interlocutory appellate intervention, but notwithstanding that an application for special leave to appeal against an interlocutory ruling may raise an important question of general importance, the preferable course is ordinarily to allow the criminal proceeding to progress to a verdict and only then for the matter to come here on appeal in the event of conviction. In this matter the Court is not persuaded that the circumstances warrant any departure from that ordinary practice.

The appellant’s argument may not be without merit but it cannot be said to be so compelling as to warrant exceptional intervention and further, until and unless the trial has concluded and it has thus been finally determined which relevant and otherwise admissible evidence is excluded pursuant to section 293(3) of the Criminal Procedure Act 1986 (NSW), any attempt to express a definitive view as to the scope and application of that provision would necessarily be hypothetical, at least to some extent. For that reason alone, this matter does not present as an especially appropriate vehicle for the grant of special leave.

Finally, although it is conceivable that a grant of special leave might lead to a successful appeal, which is to say no more, however, than that proposed ground 1 is arguable, it has not been suggested the applicant’s trial would not then still proceed. This application must thus be approached on the basis that the applicant will be required to stand trial regardless and thus the interests of justice would best be served by adhering to usual practice.

For these reasons the application for special leave to appeal is dismissed.

The Court will now adjourn.

AT 3.09 PM THE MATTER WAS CONCLUDED