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HG v The Queen S67/1998 [ 1998] HCATrans 316  (8 September 1998)

Office of the Registry

Sydney No S67 of 1998

B e t w e e n -

HG

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERA ON TUESDAY, 8 SEPTEMBER 1998, AT 10.19 AM

Copyright in the High Court of Australia

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

MR G.S. HOSKING, SC: May it please the Court, I appear with my learned friend, MR M.C. MARIEN, for the respondent. (instructed by S.E. O'Connor, Solicitor for the Director of Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, there are a number of issues raised in this appeal: the first is whether or not the evidence that the defence sought to adduce or indicated that they wish to adduce, if an adjournment were to be granted in this case, was caught by section 409B of the Crimes Act; secondly, whether or not if it was, or any part of it was, whether any of the exceptions in that provision applied; thirdly, whether or not there was a possibility of severing the evidence of Mr McCombie; fourthly, assuming that section 409B did not exclude all of it, whether or not it was caught or excluded by the opinion evidence rules of the Evidence Act; and lastly, if some or all of the evidence was inadmissible, whether or not the Court of Criminal Appeal should have considered the evidence in the exercise of its powers under section 6 of the Criminal Appeal Act.

GAUDRON J: May there not be another issue, namely, if the evidence is inadmissible, whether a fair trial could be had. I know it has not been raised.

MR ODGERS: No. Well, your Honour, we approach that through section 6. Now, I appreciate that that is not directly answering your Honour's question. Your Honour will have seen in the written submissions that we refer to the case of Grills and PJE, which was the subject of a special leave application before this Court. I am referring to pages 14 to 15 of the submissions, in paragraph 20. Our primary submission will be that, and is, that a Court of Criminal Appeal has jurisdiction, under section 6 to remedy any unfairness at trial which produced a miscarriage of justice. If your Honour is referring to a separate question, which is whether or not the courts have jurisdiction to prevent a trial from proceeding if it would be unfair by reason of the operation of, in this case, section - - -

GAUDRON J: Let it be assumed, for the moment, that there was admissible opinion evidence which would give ground for thinking what is otherwise credible evidence were not, but that it was inadmissible because of section 409B, then you would have a problem, I suspect, which I do not apprehend to have been the case in Grills.

MR ODGERS: I have misunderstood something, your Honour. Your Honour is putting to me that the evidence is not excluded by the opinion evidence rules but it is caught by 409B.

GAUDRON J: And would bear directly on the credibility.

MR ODGERS: The credibility, yes. Well, we say, of course - - -

GAUDRON J: Or the reliability of the evidence.

MR ODGERS: We go further and it would bear directly on the issues but that is not necessary for this. Well, your Honour, that was raised, as I understand it, in PJE and Grills and the submission was made - - -

GAUDRON J: It was not expert evidence there, was it?

MR ODGERS: I am sorry, I misunderstood that, yes.

GLEESON CJ: That sort of problem is really least likely to arise in the case of somebody's so-called opinion, is it not? It would arise most sharply in a case where you had evidence that was excluded by section 409B but that was otherwise clearly admissible, and relevant, and important.

MR ODGERS: Yes. Your Honour, sometimes the opinion evidence rules do have an operation in the context of a case like PJE or Grills because what you might have, for example, is - and this is an issue which has arisen in the past - that evidence of other conduct involving a child, say, for example, evidence of another assault by another person on the child, and the question arises whether or not it is excluded by 409B, and the relevance, if it is, it may well be that the relevance of that other incident to the incident in question may be shown by expert evidence about the psychological possibilities and possibilities of transference, and so on, and there have been cases like that where it was intended to show the link by that means but the evidence was inadmissible by reason of 409B. It is that type of case which has prompted the consideration of the New South Wales Law Reform Commission, among other things, in relation to section 409B.

GLEESON CJ: Mr Odgers, I think we ought to get quite clear at the outset what exactly is "the evidence" of which you have been speaking. I take it it is the evidence that appears from pages 14 to 17 of the appeal book.

MR ODGERS: And the evidence which appears at pages 18 to 33 of the appeal book.

GLEESON CJ: The committal transcript.

MR ODGERS: Yes.

GLEESON CJ: There is one aspect of that evidence that does not appear to have been mentioned at all in the Court of Criminal Appeal or in what you have said so far. I only raise it for the purpose of putting it to one side if that is what is to be done with it. I draw your attention to page 15, line 10. I take it that there was never any suggestion that the relevant evidence that Mr McCombie could have given was evidence of prior inconsistent statements by the complainant.

MR ODGERS: It was not argued at trial or in the Court of Criminal Appeal.

GLEESON CJ: So we can put that to one side?

MR ODGERS: I think, yes, your Honour.

GLEESON CJ: Mr McCombie obviously formed the view that the complainant was not a truthful person?

MR ODGERS: Yes, your Honour. Well, I withdraw that - - -

GLEESON CJ: That view coloured the entirety of his report, did it not? Indeed, he had been told by her general practitioner that she was a person whose accounts of the events were inconsistent.

MR ODGERS: Inconsistency does not, of course, mean lack of truthfulness, but I think I have to accept, yes, that Mr McCombie formed the view that - partly based on what he had been told by the mother but also based on the inconsistencies - - -

GLEESON CJ: And based on what he had been told by the general practitioner.

MR ODGERS: I am not sure, your Honour, that he specifically indicated that he relied in any way on what he had been told by the general practitioner.

GLEESON CJ: I see. At all events, we can disregard for the purpose of this appeal any use that might have been sought to be made of evidence of Mr Combie of prior inconsistent statements by the complainant but, for what it is worth, it may be noted that Mr Combie formed his opinion partly upon the basis of an adverse view that he formed as to the credibility of the complainant.

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

GLEESON CJ: And the essence of the evidence he would have given was correctly stated by Judge Kirkham, was it, in his reasons for refusing the adjournment on page 12, lines 20 to 30?

MR ODGERS: Well, your Honour, I would say that that was a rather narrow view of the evidence that Mr Combie would have given.

HAYNE J: May it not run together two aspects of the evidence which may be important to keep separate?

MR ODGERS: Quite. That would be our submission, your Honour. If I could perhaps summarise what we say the totality of Mr Combie would have been if he had been permitted to give evidence at trial. The evidence would have been that he was a psychologist who had expertise derived from a number of sources regarding children who have been sexually assaulted.

GUMMOW J: Where do we see that?

MR ODGERS: Your Honour, if I just could summarise it. I will then take you to the evidence or would you prefer me to take you - - -?

GUMMOW J: No, go on.

MR ODGERS: In summary again, he would have gone on to say that such children tend to manifest certain behaviours after the assault, or at least show behavioural changes after the assault. He would have testified that he had been told a number of things by the complainant and by the complainant's mother. He would have testified that the complainant manifested such behaviours, or change in behaviour, from 1987 onwards when she was three years old. He would have testified that in the period 1992 to 1993 there was no relevant behavioural change although he would have said that he understood from what he had been told that the sleeping problems of the complainant were diminishing. He would have then expressed the opinion that based on everything that I have just summarised, that there was no sexual abuse of the complainant in that period 1992, 1993. He would expressed the opinion that there was sexual abuse of the child in 1987. He would have gone on to give an explanation, or explanations, as to why the complainant might make a false allegation about sexual abuse in 1992 and 1993, and he may also have gone on to give an explanation for how she made that false allegation. If I might take your Honours to the evidence - - -

GLEESON CJ: Just before you go any further, the defence were setting out to establish by the evidence of Mr McCombie, if they had been given an adjournment to enable him to be called, but the perpetrator of the sexual abuse was the child's natural father, were they not?

MR ODGERS: No, with respect. The ultimate - - -

GLEESON CJ: Well, Judge Kirkham obviously misunderstood what was going on.

MR ODGERS: No, I am disagreeing with your Honour to the extent that your Honour is suggesting that the end point of what the defence were seeking to do was that, or that that was the sum total of what they were seeking to do. What the end point of what they were seeking to do was to obtain evidence of an opinion that the complainant was not sexually assaulted by the accused.

GLEESON CJ: Well how did section 409B arise? How did it come into it?

MR ODGERS: Because the material that was put before his Honour included material which involved the expression of an opinion that she had been sexually assaulted by the natural father.

GLEESON CJ: And it was only his opinion that she had been sexually assaulted by her natural father that gave rise to a question under section 409B.

MR ODGERS: That is certainly our submission, yes; that that material and only that material could have been caught by section 409B and we have put the submission that, assuming that it was so caught, the Court of Criminal Appeal was wrong in regarding the material as a whole and rejecting the submission that it could be severed.

GLEESON CJ: But, can I draw your attention again to page 12, which is the ruling of the judge that gave rise to the appeal of the Court of Criminal Appeal. It is described as an, "application for a ruling under section 409B".

MR ODGERS: Yes.

GLEESON CJ: That is the matter that Judge Kirkham had before him and on which he ruled, as it was presented to him at trial, and that turns entirely, does it not, upon the proposition that the aspect of the opinion that was relevant to that question was the opinion that the perpetrator of the sexual offence was the natural father of the child?

MR ODGERS: Your Honour, as I understand the situation, and I am relying to a significant extent on what is contained at appeal book pages 4 and 5, defence counsel indicated, and had plainly indicated to the Crown, on 23 September, that he wished to call Mr McCombie to give evidence.

GLEESON CJ: Yes. Now if all he was going to ask Mr McCombie to prove, was that in Mr McCombie's opinion the appellant was not the perpetrator of the offence - and I will put to one side whatever problems that might give rise to - then section 409B had nothing to do with the case.

MR ODGERS: I accept that, your Honour, yes.

GLEESON CJ: The converse of that is that what Judge Kirkham was invited to rule upon was the admissibility of an opinion identifying as the perpetrator the natural father of the child.

MR ODGERS: In my submission, it may well have been that counsel did not carefully differentiate between those parts of the opinion which might be subject to 409B, and those parts which would not. But, it is, in my submission, abundantly clear that defence counsel understood the position to be that he was putting the totality of McCombie's evidence, or anticipated evidence, before the judge. He understood that an objection was being taken by the Crown that it - that is, the totality of it - was caught by 409B. He argued that it was not. The trial judge, in my submission, dealt with the matter in totality, and effectively held that Mr McCombie could not give any evidence.

GLEESON CJ: And Judge Kirkham's initial response to the application for a ruling, and the reference to section 409B, is also revealing of the way in which the defence was seeking to put the case, was it not? He said in the course of argument to defence counsel, "How are you going to be able to conduct this defence without putting to the complainant that she was assaulted by her natural father?"

MR ODGERS: I conceded that one of the things, one of the matters that the defence wanted to introduce into this trial, was evidence that she had been sexually assaulted by her father.

GAUDRON J: Or by someone.

MR ODGERS: Or by someone.

GAUDRON J: At an earlier time.

MR ODGERS: At an earlier time.

GAUDRON J: Some four or five years before.

MR ODGERS: Yes. And in respect of that material, the judge was perfectly correct, with respect to him, to indicate that it would not be appropriate for the evidence simply to be led without the matter being put to the complainant in compliance with Browne v Dunn. But, I am not making a concession that all that the defence counsel wanted to get into evidence was the opinion of Mr McCombie that the complainant had been sexually assaulted by her father, or by anyone prior to 1992.

GAUDRON J: In fact, this evidence would have gone so far as to say that she probably has no recollection of that; the memory of any incident in her early years has been repressed.

MR ODGERS: There is certainly material from Mr McCombie which would suggest that, yes, your Honour.

GLEESON CJ: Has anyone ever asked her whether she remembers being assaulted by anybody else apart from the complainant?

MR ODGERS: There is no evidence as to that, your Honour. I am not aware of it.

GLEESON CJ: There is no evidence that Mr McCombie ever asked her?

MR ODGERS: The only evidence is the material in the appeal books, and as to that I cannot see anything which would suggest that he asked that question.

GLEESON CJ: So, we have no idea what the complainant's answer would be if anybody said to her, "Is the only person who ever did this to you Mr G?"

MR ODGERS: Quite. The defence wanted - well, I withdraw that. Plainly enough, if the defence had been granted the adjournment and had been permitted to lead evidence from Mr Combie in compliance with Browne v Dunn the defence would have put that very matter to the complainant and the complainant may have come up with an answer, a convincing answer that she was not. That is entirely a matter that is speculative, your Honour.

GLEESON CJ: Or more relevantly to this appeal, for example, somebody might have said, "How can that question be asked, having regard to section 409B?"

MR ODGERS: Well, precisely, your Honour. In fact, the ruling of his Honour the trial judge was that that question could not - that the question would have to be asked in compliance with Browne v Dunn. It could not be asked by reason of 409B and, therefore, the evidence of Mr Combie in totality could not be permitted. Now, I accept that I have made a jump there but, in my submission, a fair reading of what happened before the trial judge was that it was understood by everyone there that the trial judge had said, "You cannot call Mr Combie". Because, with respect, your Honour, if the trial judge had thought that it might be appropriate to divide up Mr Combie's evidence it would have been very simple for his Honour to have said, "However, there are parts of his material which would be admission. Are you maintaining your adjournment application in order to get him to give that evidence at trial?", that he said, "No, and I am refusing the adjournment". So, clearly he was making it clear that Mr Combie in none of his evidence could be adduced at trial.

Your Honours, I will not take you through the report itself. I am sure your Honours have read that, and it speaks for itself. I have attempted, as I say, partly relying on that report to summarise what Mr Combie's evidence would be but I will take you to the transcript of the committal proceedings, or at least parts of it. I take your Honours firstly to page 18 of the appeal book. Your Honours will see at lines 32 down to 53 he gave evidence of his professional qualifications and expertise. At page 20 he gave somewhat more detailed evidence as to what he had been told by the mother of the complainant, and I will not read that out, that is in the two large paragraphs on that page, and continuing down to line 50 and line 55 and over the page.

He is essentially summarising what he had been told by the mother to, if I might simplify it, evidence that there were behavioural problems which continued from 1987 right up to 1993, and that there were sleeping problems and disturbances which began in 1987 and continued, although albeit in a somewhat diminishing manner through to 1993. There is some ambiguity in this, your Honours. I should just make the point that it is not entirely clear what aspects of the sleep disturbances that Mr McCombie was referring to, whether he was referring to all of it or only particular parts. Your Honours will note that, if I could just take you quickly back to the report, on page 15 of the appeal book, at line 35, he summarises what the mother had told him. She stated that the complainant:

suffered from disturbed sleep and nightmares. She stated that C would often call out in her sleep, saying "stop it daddy".

Although I am a layman, my submission would be that it would be the latter which would tend to be more significant, and likely to be more significant.

GLEESON CJ: And why would you infer from that that the "it" was abuse of a sexual nature, as distinct, for example, from physical cruelty?

MR ODGERS: I, as a layman, would not be able to answer that, your Honour. If I could return then to what I was taking your Honours to, pages 20 through to 21. On page 21 there is a rather difficult sentence which I suspect strongly must be a misprint, but at line 40 he was asked:

Q. And what specific questions of inquiries did you make in relation to that aspect?

A. By introduction to this process I said to Mrs P that, my brief role from Mrs P was to inquire, to find out if C had actually been sexually assaulted and that I said to Mrs P at that time, "well she wouldn't have been sexually assaulted if she shows some behaviour disturbance, sleep disturbance, mood disturbance in response to this sort of event".

Now, your Honours, in the context of the report and what went before and after, in my submission, that clearly must be a typographical error. What precisely he said, I do not know. It may have been that he said, "Well, she could have been sexually assaulted if she shows et cetera", but I do not know, your Honours, what precisely was said there.

On page 22, he testified as to asking the complainant to draw a picture of her family, that is at line 20, and he said at line 25:

Children who are disturbed tend to draw pictures which are atypical of their age group in terms of maturation levels of the drawing their doing for their age group -

and I will not read the rest of that. He explained how that drawing of pictures could be utilised in expressing opinions as to whether or not there had been sexual abuse.

GLEESON CJ: Did anywhere explain how drawings by disturbed children would enable you to differentiate between sexual abuse and any other form of abuse?

MR ODGERS: No, your Honour.

HAYNE J: What he did say at the bottom of 22 is that it is "a subjective technique and it is not rigorously valid".

MR ODGERS: Yes, your Honour. I will return to that point your Honour Justice Hayne has made in a moment. I am just thinking about what your Honour the Chief Justice has asked me and, in my submission, while it is true that Mr McCombie did not, as far as I recall, at any stage - and I will check this later - explicitly differentiate between non-sexual and sexual abuse, the logic of his reasoning seemed to be that she was abused - I will withdraw that - she was not abused in 1992/1993, for various reasons. She was abused in 1987 and, given all the other material in respect of which he had received information, it appears that he concluded that the nature of the abuse in 1987 must have been sexual.

GLEESON CJ: What is that other material that indicated to the earlier abuse being sexual?

MR ODGERS: That indicated that the abuse must have been sexual?

GLEESON CJ: Yes, what was that material?

MR ODGERS: For example, and I am not sure I can take your Honour to what precise - where Mr McCombie said this, but it was clear that the complainant had knowledge of sexual matters. Her ability to, for example, describe what had happened, what she claimed happened to her with the appellant, purely as a matter of commonsense, would suggest that she had sexual knowledge. There may be other examples. That is what, at this moment, I can suggest to your Honour; that that suggested that she had been sexually abused at some time. Consequently, if the logic is she was not abused in 1992/1993, she was abused in 1987. She was sexually abused at some point, therefore, it is likely that the abuse in 1987 was sexual abuse.

GLEESON CJ: Mr McCombie's opinion was that the abuser was her father.

MR ODGERS: That followed simply on the basis of what he had been told that - - -

GLEESON CJ: That is what he said in his opinion.

MR ODGERS: Yes.

GLEESON CJ: Yes.

MR ODGERS: Yes, but your Honour if I could just say this, that to be fair to Mr McCombie, and I think this is what your Honour Justice Gaudron put earlier, he was expressing an opinion that she was abused and probably sexually abused back in 1987. The only person that it was suggested could have done that, on what he had been told, was her natural father, consequently, in his opinion, it was likely to be the natural father.

GLEESON CJ: And, in his opinion, there was only one abuser, even back then. Did he have any reason for believing she had not been abused by three people?

MR ODGERS: I do not think he did. In cross-examination, it might well have been that he might have made that concession, but I do not think he would have made the concession, or I do not think he would have retracted his opinion that she was not sexually abused by the appellant which, as I say - - -

HAYNE J: The immediate question is whether any of this evidence should have been before the jury, not what inroads a cross-examiner may have made on it nor, perhaps, even whether the jury may have been persuaded or unpersuaded by it.

MR ODGERS: Certainly. That is our submission, your Honour.

GLEESON CJ: And the question is how that evidence could have got before a jury in the light of section 409B.

MR ODGERS: That is one of the questions, yes. Although, as is clearly our submission, and I think as your Honour has accepted, certainly a substantial proportion of Mr McCombie's evidence was not caught by 409B, which raises then the question of whether or not the Court of Criminal Appeal was correct in its conclusion that it was all or nothing. But I will return to that issue later. Your Honours, page 25 at line 40 and down to the bottom of the page, this relates to the matter your Honour the Chief Justice put to me earlier. Mr McCombie relates his opinion that there were inconsistencies in the accounts given and I would accept that that was one factor he took into account in forming his opinion.

GLEESON CJ: But that was not the evidence that he was going to be called to give. The defence was not setting out to prove, through Mr McCombie, the making of prior inconsistent statements.

MR ODGERS: Your Honour, maybe I was too quick to make the concession earlier. It was not put to the trial judge, nor to the Court of Criminal Appeal, that the trial judge was in error in excluding this specific material. That is, evidence as to what the complainant said, which was inconsistent with her in-court testimony; that was not put. However, it was clearly the position of the defence that it would seek to adduce that evidence.

GLEESON CJ: Look, there has not been any suggestion either to the trial judge or to the Court of Criminal Appeal that a material aspect of the relevance of Mr McCombie's evidence would have been that he would have proved the unreliability of the complainant because she had made to him inconsistent allegations about Mr G.

MR ODGERS: Yes, your Honour, that is correct. Page 26, at line 35 through to 55, in cross-examination, Mr McCombie gives additional evidence as to his expertise. There is a question asked, page 28, line 52:

Q. You spoke towards the latter stages of your evidence about "people have very clear responses to trauma"?

A. Yes they do.

That was a reference back, and I did not read it, to page 25, where, at line 53, he says:

People who are assaulted have very clear responses to trauma and one of those is a clear picture of what happens to them, unless they block it out in some way, clearly block it out, deliberately and that's very clear in their behaviour as well.

So, that was what he was being asked about. And he went on, on page 29, to explain what he was talking about:

The trauma produces a condition called, initially, acute stress disorder and then it becomes a thing called post-traumatic stress disorder afterwards, if it's still there after a month and those disorders are characterised by high level arousal or the alternative of it is a very low level arousal, emotion numbing sort of response, or as I say, a high level arousal which means anger, mood disturbance, children non-compliant behaviour, adults become more aggressive with their partners, whatever else. Sleep disturbance, say that person has trouble going to sleep in the first place or staying asleep or both, usually a re-experiencing of the event itself in some way as a nightmare or as a flashback in the daytime -

If I might just stop there for a moment. It is because of this point that I made the point that I made earlier, that if was not entirely clear what aspects of the sleep disturbance of the complainant Mr McCombie was relying on. There was evidence in the trial about her having nightmares about spiders but it appears that that is not what Mr McCombie was relying on specifically when he was talking about sleeping problems.

HAYNE J: But in aid of what proposition do you take us to this passage of the evidence?

MR ODGERS: In aid of the proposition that Mr McCombie was asserting that children who have been sexually abused tend to manifest certain behaviours after the assault.

GLEESON CJ: What, all of them?

MR ODGERS: It appears that he does express that opinion. As I said a moment ago - - -

GLEESON CJ: All children who have been sexually assaulted suffer sleep disturbance. Is that the proposition?

MR ODGERS: No, your Honour. If I just reread again what I read on page 25, line 53:

People who are assaulted have very clear responses to trauma and one of those is a clear picture of what happens to them, unless they block it out in some way, clearly block it out, deliberately and that's very clear in their behaviour as well.

Then, when he is asked about "people have very clear responses to trauma" on page 28, line 52, he then goes on and he has asked:

And does that cover children of tender years as well?

Line 55:

Yes it does.

And do those clear responses have a great variation in pattern?

He then goes on to give this answer.

HAYNE J: I still do not understand, Mr Odgers. We are not here to try the case. We are not the jury. The question is one as to admissibility of evidence.

MR ODGERS: I appreciate that, your Honour. Perhaps I am getting ahead of myself, but I anticipated that my friends, the Crown, would be making submissions that this evidence was inadmissible under the opinion evidence rules on the basis that there was some deficiency in terms of establishment of expertise, either in a general sense, or specifically in respect of this particular witness.

HAYNE J: Is not the burden of this man's evidence, had it been called, (1) I am a psychologist. (2) I have the following experience in relation to children who have been sexually abused. (3) I can tell you signs and symptoms that a child that has been sexually abused exhibits. (4) This child did not, at this time. (5) This child did at that time. Is there more to it than that?

MR ODGERS: Your Honour, I earlier attempted to summarise the matters. Very largely, I accept what your Honour has put to me.

HAYNE J: What is the difference between that evidence and that of a medical practitioner who says, "I can tell you the physical signs that are consistent with sexual interference with a young person. They are A,B,C. I examined this child. This child did not exhibit those signs at that time".

MR ODGERS: In my submission there is no difference. The last thing I will read out from this testimony, and I am sure your Honours will be happy about that, is just the rest of that paragraph on page 29, particularly at line 15:

In children depression is expressed as again, acting out behaviour and so there's a fairly large cluster of recognizable behaviours for trauma okay. Occasionally children, or adults as well, have a problem where they lockout of their minds, consciously or unconsciously the event itself, but they still have the behaviour disturbance anyway, so there's always -

to answer the Chief Justice -

a clear behaviour change with trauma, with adults or children. Either in terms of being much more overt or being much less involved, with life withdrawal, alienation, depression, melancholia responses.

HAYNE J: And what the collective good sense of 12 people locked away in a jury room might have made of that bundle of jargon is perhaps not immediately for our consideration.

MR ODGERS: Yes, your Honour. Now, turning to the question of whether or not 409B excluded this evidence. Our first submission is that - and I am now focussing really, exclusively, I think, on the opinion that the complainant had been sexually assaulted by her father. If I can take your Honours to section 409B of the Crimes Act New South Wales 1900. Our first submission, as I have indicated in the written submissions is that the prohibition or the exclusionary provision in subsection (3) applies only to consensual sexual experience and/or activity.

GLEESON CJ: How old was the child at the time of the hypothesised - - -

MR ODGERS: Three.

GLEESON CJ: So, it is only consensual sexual activity by three-year-old children that is excluded by this?

MR ODGERS: Yes, your Honour.

GLEESON CJ: Very well.

GUMMOW J: Well, that just sounds nonsense - - -

MR ODGERS: Your Honour, I can only - - -

GUMMOW J: - - - simply because of the concept of consent and the age.

MR ODGERS: Well, your Honour, perhaps - I do not disagree with your Honour. Yes, it is nonsense. Yes, plainly, there is no consent. Yes, therefore, as the result is, we say, that this evidence is not caught by 409B(3). That is our submission. The question is, of course, whether or not 409B(3) - that the intention behind subsection (3) was that it only apply to consensual actions.

GLEESON CJ: This is the flag that Justice Sperling once tried to run up the flag pole and hauled down very quickly, in the present case?

MR ODGERS: Yes. Yes, he did. And, we are trying to push it up again, your Honour.

GLEESON CJ: Or at least see if anyone salutes.

MR ODGERS: Yes.

HAYNE J: The breeze seems to be blowing a bit, does it not, Mr Odgers?

MR ODGERS: Yes, your Honour, I am going to give it a good try. Your Honours, I was going to take you to what his Honour Justice Sperling said in PJE. I will not. I will come back to that case later in another context, but, as your Honour the Chief Justice correctly put it, Justice Sperling raised that issue and then, as is clear in the appeal book - I am sorry, in the judgment of the Court of Criminal Appeal - he withdrew from that position. However, as we submit, he was right when he got - the first time.

Now looking firstly at the words of subsection (3), they say:

In prescribed sexual offence proceedings -

and we concede that these were such -

evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity is inadmissible except -

Now, on the face of it, one interpretation is that that pretty much covers the field and catches both consensual and non-consensual activity. There are really four different categories in those words. The first is "sexual experience". The second is "lack of sexual experience". The third is "taken part in any sexual activity". The fourth is "not taken part in any sexual activity.

Our submission is that the use of the words "had sexual experience" is ambiguous and permits an interpretation that only consensual matters are being raised. If I could use an analogy: for example, the word "experienced" with a "d" on the end, plainly, we would say, imports consensual acts.

GAUDRON J: Why?

MR ODGERS: The word here, of course, is "sexual experience", but we submit that it is significant that it does not say "has or may have had a sexual experience". It says "has or may have had sexual experience". We would submit that that supports one interpretation which limits it to consensual matters. I am sorry, your Honours, Justice Gummow was - - -

GUMMOW J: Has this Act been amended, this section?

MR ODGERS: No, your Honour. It is presently before the New South Wales Law Reform Commission.

GUMMOW J: No, at any time since its first enactment, has it been amended?

MR ODGERS: I do not think so, no. Then the second category is "lack of sexual experience". Again, on one interpretation that would extend, plainly, to a situation - when I say "plainly", one interpretation would be that if what we say is correct about sexual experience involving consensual events, lack of sexual experience could be interpreted to mean non-consensual events. However, our submission is that that is not the correct interpretation and that the words "lack of sexual experience" mean no sexual experience. That is, no consensual sexual experience.

So that evidence that the child had been sexually abused on a particular occasion would not be evidence that the child had never had consensual sexual experience; that the words "lack of sexual experience" should be interpreted to mean evidence that the complainant had never engaged in consensual sexual activity. Consequently, evidence that she had been sexually abused would not be caught by those words.

GLEESON CJ: The expression "sexual abuse" is frequently used to cover conduct on the part of adults towards children which occurs in circumstances where there is no resistance. What exactly does the idea of consent or lack of consent mean in a context of adult/child sexual relations?

MR ODGERS: At the very least, volitional activity. Volitional, that is - - -

GLEESON CJ: Volitional on the part of the?

MR ODGERS: Complainant.

GLEESON CJ: Child?

MR ODGERS: Yes.

GLEESON CJ: These are children who are held by the law to lack mental capacity to form the necessary volition in relation to a variety of forms of conduct.

MR ODGERS: Yes.

GLEESON CJ: Including conduct that would otherwise be criminal.

MR ODGERS: Yes, well, we would submit that really at the end of the day, in those circumstances, it could not be reasonably submitted that there was consensual activity. Consequently, we would say that the concern expressed by the President of the Court of Appeal, and endorsed by the Court of Criminal Appeal, as to the potential problems raised by the interpretation we have advanced, is largely incorrect, that the reality would be that there would rarely be any question that if it involved sexual activity with children, that it should be understood to be, or should be interpreted to mean, non-consensual activity.

GLEESON CJ: Well, then, you move away from a child of tender years to a child of more advanced years. Do you use the word child to apply to anyone under the age of 16?

MR ODGERS: I do not - - -

GLEESON CJ: How about a school child of 15 years?

MR ODGERS: I am not going to answer that question precisely, your Honour. What I am going to say is that we say 409B does not catch consensual sexual activity. The issue is whether or not it would be necessary for the Crown to establish that it was consensual. In the case of young children, plainly that task would be insuperable. In respect of older children, subject no doubt to what the child told the Crown Prosecutor was the situation, it may well be that the Crown would seek to call evidence from the child as to whether or not there was consent.

GLEESON CJ: But we are looking at a question of statutory construction and asking ourselves whether Parliament intended issues like this to be raised by section 409B.

MR ODGERS: Yes. Our submission is that - - -

GUMMOW J: It is more likely Parliament never thought about it, that is the trouble, and that maybe the form of words they have used went beyond the particular mischief they were perceiving, but that may not matter.

MR ODGERS: Certainly. What is put against us is that, notwithstanding what is said in the second reading speech - and I will take your Honours to that briefly - that the effect of section 409B(3) is that it really does cover every type of possible sexual event - if I might use that language - and we - - -

GUMMOW J: But if the meaning of the words is clear, how can they be cut down?

MR ODGERS: Well, we say they are not clear. The submission we are making is that the words are sufficiently ambiguous to permit a conclusion that the words only apply to consensual events.

GUMMOW J: I know you say that, but if you are wrong about that and if the meaning of the words is clear, how does it matter that the form of words used by the Parliament encompassed a situation which they did not have in mind? So be it.

MR ODGERS: I think I am stuck with that.

GUMMOW J: Yes.

GLEESON CJ: Just remind us about the legislative history of this. I think it is widely known who the drafter was, but was it a report of the New South Wales Law Reform Commission?

MR ODGERS: No, your Honour, I think it was the Criminal Law Division of the Attorney-General's Department.

GLEESON CJ: What was the judgment of Justice Mathews dealing with this section? Was it the case of Henning? I think she wrote one of the fairly early judgments on the construction of this.

MR HOSKING: Yes, Henning, your Honour.

MR ODGERS: Your Honour, I have looked at Henning. My submission would be that it does not really assist, at least on this question. There is some reference to the legislative history and in the second reading speeches, your Honour, both from the then Premier, Mr Wran, and the then Attorney-General, Mr Walker. There is reference to the various people who had been involved in the drafting of the provision.

If I can return to the words at section 409B(3), but before I do that: Your Honour Justice Gummow raised the question if the words have that effect, even if it was not anticipated, the intricacies of statutory interpretation are not something which I can very much assist the Court on. As I understand it, however, your Honours - - -

GUMMOW J: But that is what this case is all about.

MR ODGERS: Perhaps I should have said, the principles and the interaction between the Interpretation Act provisions about looking at the purpose of the legislation in order to determine the proper interpretation of it and the use of, for example, the second reading speeches and other materials. As I understand the position, and it was a position, for example, articulated by your Honour Justice McHugh in Saraswati. I think your Honour in that judgment, with Justice Toohey, discussed relevant principles relating to statutory interpretation, bearing in mind those provisions of the Interpretation Act and my understanding, your Honours, is that the position is that in working out the ordinary meaning of the words, that must be done in context and looking at all of the provisions and also taking into account the purpose behind the provisions.

Indeed, taking into account the second reading speech and material like that, for example, it may be that a conclusion is reached that the words should be given an interpretation different from that which appears from simply reading them or applying logical principles or grammar or something like that.

GUMMOW J: Well, it is one thing if the form of words used on its face may seem to fall short and not effectuate the purpose, it may be another if they comprehend the purpose; that is included, but they go beyond it, do you see what I mean?

MR ODGERS: Yes, I do. I do. In any event, our submission is that the words are ambiguous and that the interpretation we submit should be given to them is open, particularly bearing in mind the purpose behind the provisions which I will take your Honours to in a moment. Just finally, in respect of the third category which is lack of - I am sorry, I withdraw that - "taken part in any sexual activity". Our submission is that the concept of "taken part in" permits, indeed suggests, an interpretation of volitional and consensual activity.

Now, in respect of the fourth category which is "not taken part in any sexual activity" we make the same submission we made in respect of lack of sexual experience, that the words should be understood to mean "never taken part in sexual activity", so that evidence that the complainant had been on one occasion sexually assaulted would not be evidence that the child had never taken part in sexual activity because it would not disclose or imply that she had never engaged in consensual or volitional sexual activity.

GLEESON CJ: I think it has been pointed out on a number of occasions that words like "complainant" and "complaint" and "assault" in this context are often capable of conveying a misleading impression.

MR ODGERS: Yes, your Honour. Your Honours, the second reading speech - I think your Honour's have that. Can I just take your Honours to that material. This is Hansard, the second reading speech by the Premier on Hansard page 4758. Do your Honours have that? The Premier referred to this briefly at 4759 at the bottom of the page:

The common law has also laid down different rules for sexual assault offences. Different rules of evidence relating to corroboration and prior sexual history operate against a complainant in a sexual assault case more stringently than apply in any other criminal trials. The changes to be effected by this bill are designed to ease, so far as is possible, the humiliation experienced by sexual assault victims, to remove the stigma attached to the rape victim, to encourage victims to report the offences, and to bring the offenders to justice as justice demands. Shortly my colleague the Attorney-General and Minister of Justice will outline to honourable members the detailed provisions of the bill. I desire merely to highlight here some of the more significant aspects.

On the next page at 4761.5:

Finally, the bill will prohibit irrelevant questioning of sexual assault victims about their prior sexual behaviour.

Your Honours, I interpose there that "prior sexual behaviour" is a term which, in my submission, tends to suggest volitional conduct.

GLEESON CJ: There was, of course, no need for legislation to prohibit irrelevant questioning.

MR ODGERS: Quite.

GLEESON CJ: Irrelevant questioning would be prohibited on that account alone.

MR ODGERS: Yes, your Honour:

This provision is based upon the premise that a person who seeks sexual intercourse with another should not be able to rely on scandal or gossip about the other person or on rumour or knowledge of that other person's sexual behaviour -

there is that concept again -

with others, as a basis for assuming consent to intercourse. The law should not - and under this legislation will not - allow the accused to subject the victim of the sexual assault to humiliating and irrelevant questioning about details of previous sexual conduct and attitudes.

Again, we would say, "previous sexual conduct and attitudes" bespeaks volitional and consensual activities. That is all from the Premier.

The Attorney-General referred to this part of the legislation, at 4763.3, at the end of the second paragraph:

At the very centre of the proposals is the restriction in new sections 409B and 409C on the admissibility of material concerning prior sexual history.

And "history" is a rather more ambiguous term:

The deficiency of the present law is that a victim may be cross-examined about sexual behaviour -

again, that word we rely on -

with other persons, possibly years before, in circumstances quite irrelevant to the case in question.

Then, at the bottom of the page, and I will not - - -

GLEESON CJ: Now, just before you go any further. On the construction that you put on this section, it would permit cross-examination of a woman to prove that she had, on an earlier occasion, been raped.

MR ODGERS: Yes.

GLEESON CJ: Yes.

MR ODGERS: If relevant and if not excluded by the Evidence Act. At the bottom of the page, and I will not read it out, the Attorney-General referred to the intention - and this is significant to what later submissions we make about the Criminal Appeal Act. It has made it clear that the intention was that this provision would be one in which there would be an exclusionary provision with limited exceptions with no judicial discretion to admit evidence on the basis that the trial judge thought it was sufficiently probative to outweigh the reasons for not admitting it.

Essentially, the Attorney-General made it clear that the government did not trust judges, and that is why they adopted this approach. There is some reference to other parts of 409B, but I will not take your Honours to that.

We say in our submissions that the purpose behind 409B was essentially to prevent not only irrelevant questioning but humiliating questioning of limited relevance to the issues in the case and, in our submission - - -

GLEESON CJ: You can be humiliated by being asked questions about non-consensual activity, can you not?

MR ODGERS: In our submission, as a general proposition, it is less likely to be humiliating. I appreciate that the Crown has put the converse proposition but, in my submission - I can only make it - a person is less likely to be humiliated about the fact that they have been assaulted than that they have engaged in consensual sexual activity.

McHUGH J: But, more importantly, for the purpose of determining the mischief of this section, it is plain from the Premier's second reading speech that he regarded the very fact that a person had been raped as involving some form of stigma, and at page 4759 in the second reading speech, he said that:

One of the most tragic aspects of crimes of rape or sexual assault is that the victim of the crime suffers some form of stigma.

He went on to say that:

There is no doubt, however, that the humiliation, the fear of rape stigma, the treatment which victims have received by law enforcement and judicial authorities have increased the suffering of victims.

MR ODGERS: Your Honour, in my submission, that cannot have been meant by the Premier to be referring to child sexual assault. Perhaps he was referring to the fact that in some societies that, where adult women have been raped, that they do suffer some kind of stigma. It must be so read.

McHUGH J: But the Premier went on to say:

That humiliation involves their being forced to recount, not once, but at least twice in minute detail, the most humiliating and degrading experience they have ever gone through,

He is obviously talking about committal proceedings and trials.

MR ODGERS: Yes.

McHUGH J: But why does it not apply to somebody who is being asked to recount an earlier episode of rape, indecent assault, and particularly when one looks at subsection (3) and what the judge has to weigh up. The exceptions are admissible only when you come within the categories in subsection (3), and also when the probative value of the exception evidence outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result. Princess Youssoupoff got [sterling]50,000 for damages in the 1930s from a jury on the basis that she had falsely said that she had been raped, and it was said that defamed her reputation. Why does it not distress or humiliate anybody to have it recounted in a public court, that she has been raped, indecently assaulted, on some earlier occasion?

MR ODGERS: Your Honours, essentially this is a matter, not of logic, but of experience, and your Honour's experiences - I mean, mine are no better than anyone else's - my submission is that the reality of cross-examination in a rape committal or a rape trial, by a cross-examiner seeking to put to a complainant that she was not sexually assaulted, and going in exquisite detail into the allegation, is obviously likely to be distressing to the complainant. However, in my submission, in the reality of what we are submitting as to what would happen if our interpretation were accepted, there would be none of that. All that would have to happen, at the very most, would be that the complainant would be asked to confirm, by the defence counsel that, indeed, she or he had been sexually assaulted on some prior occasion.

McHUGH J: The section is not merely aimed at sexual assault but even it being present. Supposing a witness was asked, "Were you present when so and so had intercourse with half-a-dozen men?", does that not come within the prohibition?

MR ODGERS: Yes, if she was there consensually, and volitionally.

McHUGH J: Yes.

MR ODGERS: Because that is taking part - - -

McHUGH J: Or not taking part.

MR ODGERS: With respect, my submission is it is sexual experience. The difference between sexual experience and taking part in sexual activity is that sexual experience can involve non-acts, that is, observations.

McHUGH J: Yes, I know, but the section also talks about "not taken part". You cannot be asked whether she has not taken part in sexual activity.

MR ODGERS: Yes, your Honour. I have attempted to - we have made our submission as to what that means and there is no point in me repeating it.

McHUGH J: These problems will well and truly - I well remember this conference in Tasmania in 1980, although I was not present. I made my own views known about the section and the effects of it. It was widely discussed at the time, and I cannot recollect whether this precise problem was seen, but plenty of them were foreseeing - - -

MR ODGERS: Your Honour, I have looked at the materials and I think, with respect, that Justice Gummow is correct, that it just was not something that was really thought about.

GLEESON CJ: It was thought about and argued about at great length, Mr Odgers.

McHUGH J: The Chief Justice and I were both on the Bar Council at the time and - - -

MR ODGERS: This specific issue, your Honours, of consent?

GLEESON CJ: It was the subject of hot controversy.

MR ODGERS: I see.

GAUDRON J: Before you leave 409B, however - - -

MR ODGERS: I am not leaving it yet.

GAUDRON J: I would like some assistance, if it is possible, with exception (a), because, prima facie, this comes within subparagraph (i), but I do not understand what subparagraph (ii) does.

MR ODGERS: I think, your Honour, I will have to make a concession - I hope I am not wrong here - that it does not come within subsection (1) because it was not - - -

GAUDRON J: Subparagraph (i).

MR ODGERS: Subparagraph (i) - - -

GAUDRON J: That it is evidence:

of.....lack of sexual activity taken part in by, the complainant at or about the time of the commission of the alleged - - -

MR ODGERS: That is the problem. I do not think - - -

GAUDRON J: I would have thought it did come within (i). The evidence of Mr McCombie would suggest that she was not taking part in any sexual activity at or about the time - - -

MR ODGERS: Yes.

GLEESON CJ: You are addressing the whole of your arguments so far, as I understand them, to Dr McCombie's evidence that she had sexual activity with her real father at the age of three.

MR ODGERS: Yes, that is correct, your Honour. I am only addressing that on the assumption that 409B did not exclude the evidence of Mr McCombie, the opinion of Mr McCombie that she was not sexually assaulted by the accused.

GLEESON CJ: Nobody ever suggested, before Judge Kirkham, that section 409B touched the question of Mr McCombie's opinion that Mr G did not do it. That is not what Judge Kirkham thought he was ruling about.

MR ODGERS: Yes, that is correct, your Honour. Subject to this, the point that I made earlier - - -

GAUDRON J: I still think that the evidence would come within (3)(a)(i), albeit that the reason for the expression of that opinion relates to earlier sexual activity, but I do not understand what subparagraph (ii) does.

MR ODGERS: Yes. If I just quickly say, your Honour, that no one has suggested, at any stage, that 409B excluded the opinion that she was not sexually assaulted by the accused.

GUMMOW J: You are not facing up to the question of construction, Mr Odgers.

MR ODGERS: I am sorry, your Honour.

GUMMOW J: You are not facing up to the question of construction.

MR ODGERS: I am sorry, I just wanted to make something clear - - -

GUMMOW J: I am not interested at the moment about what someone else has said on some other occasion. What you have been asked about is, if one gets within (a) because of the text, namely, the phrase "lack of", is that not sufficient?

MR ODGERS: Yes. Your Honour, there is no doubt that - - -

GAUDRON J: That it all then becomes - what I am putting is - what I was asking is, if you get within (a) because the evidence is probative of the lack of sexual activity, why does not the whole of it come in?

MR ODGERS: I see.

GAUDRON J: That question may be irrelevant because I do not understand what subparagraph (ii) does.

GLEESON CJ: To get within (a) you have got to come within both (i) and (ii), and (a) is aimed, is it not, at, for example, a case in which the alleged sexual offence occurred at 8 o'clock on an evening in circumstances where the defence want to establish consensual activity at 7 o'clock on the evening.

MR ODGERS: That has certainly been the way in which this provision has been utilised, but as I understand - - -

GLEESON CJ: And they want to say that the fact that you consented to something at 7 o'clock at night might assist a conclusion that you also consented to it at 8 o'clock at night.

MR ODGERS: Yes, your Honour, that is correct, and attempting to answer your Honour Justice Gaudron, the additional requirement of (ii) is that it is not enough that the sexual activity was close in time; it had to be related to, in some relevant way, the alleged offence. So it would be necessary for the defence to demonstrate a relevant connection between the sexual experience or lack of sexual experience - - -

GAUDRON J: Activity.

MR ODGERS: I am sorry, yes. The thing in subparagraph (i) and the alleged offence. Now I have to confess, and I think it is obvious to everyone, that I had not thought of an argument that you could get all of Mr McCombie's evidence in through paragraph (a).

GAUDRON J: You could get it through (a) (i), but I am worried about (a) (ii).

MR ODGERS: Your Honour, I am not going to look a gift horse in the mouth.

GAUDRON J: Well, it is not one.

GUMMOW J: It is not one at the moment.

GAUDRON J: It is not one.

MR ODGERS: Well, certainly, in my submission, all of Mr McCombie's evidence of opinion as to events, whether they occurred in 1989 or 1992, satisfied subparagraph (ii). The difficulty I had anticipated - - -

GAUDRON J: Why do you say they satisfy subparagraph (ii)?

MR ODGERS: Because they were part of a connected set of circumstances.

GAUDRON J: Which are? What is the connected set of circumstances?

MR ODGERS: That the complainant was sexually assaulted by her father in 1989, that causes her trauma, that then ultimately manifests itself in a false allegation against the accused and consequently is connected to the alleged prescribed sexual offence.

HAYNE J: What circumstance is there that is common to those events other than the identity of the complainant?

MR ODGERS: I am not sure I can suggest anything, but I am relying on the proposition that it forms part of a connected set of circumstances. That is the terms of the provision.

HAYNE J: I understand that and at the moment the only commonality I can identify in what you have described is that it is the one complainant.

MR ODGERS: I am relying on what is both explicit and implicit in Mr McCombie's evidence that there was a linkage, and a psychological linkage, between the assault in 1989, as he believed it to have occurred, and the making of the allegations in 1993.

HAYNE J: At first blush those do not seem to me to be circumstances in which the alleged offence was committed which seem to be directed to the circumstances of the offence rather than the identity of the complainant or her circumstances, if that is an expression that can be applied to her.

MR ODGERS: Your Honour, I cannot say any more than what I have said.

HAYNE J: Yes.

MR ODGERS: Your Honours, we have also argued in the written submissions that two other exceptions apply. The first is subsection (3)(b), and the third is subsection (3)(c). The submissions are at page 6 of the written submissions. In general terms, in interpreting these exceptions we submit that it is established, and should be accepted, that the exceptions should be interpreted broadly. That point was made in a number of cases in New South Wales after this provision was introduced. You will find, your Honours, in Dimian at page 365 a reference to that approach. I will not read it out but we submit that that approach should be taken. Taking that broad approach to paragraph (b), it is our submission that the evidence of Mr McCombie related to a relationship between the complainant and the accused at the time of the commission of the alleged prescribed sexual offence, and, again, we have relied on the argument which I advanced a moment ago that Mr McCombie suggested that the commission of the assault in 1989 related, in a very general sense, to the relationship between the complainant and the accused and provided an explanation for the making of a false allegation of sexual assault by the accused. This is a broad reading of the provision. I cannot point to any authority in which that approach has been adopted.

GUMMOW J: What does the word "relationship" mean?

MR ODGERS: There is some authority on that question, your Honours. In Henning itself, at page 76 - - -

GUMMOW J: What does that say?

MR ODGERS: There is a reference to an earlier decision of White, and it is stated there:

"The "relationship" which is spoken of must be something more than what exists between people who have met one another once or twice before and who strike up a conversation on a beach. The Macquarie Dictionary gives various meaning of the term "relationship". The broadest meaning is, simply, "connection". The narrowest meaning, which seems to be much closer to the sense in which this legislation uses the word, is "an emotional connection between people, sometimes involving sexual relations". To like effect is what appears in the Collins English Dictionary. The word is here used in the narrower, rather than the broader, sense. That view is supported both by the context in which it appears and by the consideration that, when used about a man and a woman, the word "relationship" has now acquired a popular meaning which accords with the narrower meaning given in the dictionaries."

GUMMOW J: Well, here there is the relationship between step-father and infant child in the same household.

MR ODGERS: In my submission, that clearly would - - -

GUMMOW J: You say that is enough.

MR ODGERS: Yes. In Beserick, which involved the question of whether or not the prosecution could lead evidence of "relationship" evidence, notwithstanding section 409B, defence counsel in there made the novel submission that 409B precluded the prosecution from adducing such evidence. Justice Hunt in the Court of Criminal Appeal held that "relationship" would extend to a one-sided matter, so to speak, that is, the existence of a sexual passion by one person for another, and he rejected the proposition that it had to be - - -

GUMMOW J: This is not one-sided. It is the step-father bringing up a child

MR ODGERS: Precisely. Yes, your Honour. I am just attempting to take your Honour to the authorities on the meaning of "relationship".

GUMMOW J: I am trying to construe the section. I need help.

MR ODGERS: To the extent that the authorities say anything about it, your Honour - - -

GUMMOW J: Just forget about the authorities for a minute and try and construe the Act.

MR ODGERS: Yes. My submission is the terms should be - - -

GUMMOW J: Unless there is some authority that really assists.

MR ODGERS: In my submission, it should be interpreted broadly notwithstanding what was said in - - -

GUMMOW J: It is no good saying it it should be interpreted broadly. It does not mean anything. Now, you took us to Henning and you rely on that.

MR ODGERS: Yes, I do.

GUMMOW J: Do you say you are within Henning, because this - - -

MR ODGERS: Yes.

GAUDRON J: You do not say that (b) operates by reference to a relationship between the complainant and some other person in 1987 - - -

MR ODGERS: No.

GAUDRON J: No, because it has to be between the accused person.

MR ODGERS: Your Honours, the Court of Criminal Appeal rejected this argument, relying on paragraph (b) at page 228 of the appeal book and we submit that the basis for rejection was plainly in error. At line 50 on page 228:

But in the end I would reject the third challenge on a more direct ground. The real thrust of the psychologist's opinion on this and other aspects of his report was that recent events stimulated the repressed or buried memory of an earlier sexual assault at the hands of the complainant's father. By this means the graphic evidence of sexual activity presented by the complainant was neutralised as regards the appellant. The difficulty with this approach has already been adverted to in the context of my analysis of the psychologist's report. The whole thrust of that report is directed at explaining why the complainant's evidence of sexual assault (accepted by the psychologist) points to an incident with the natural father rather than with the appellant. Evidence of that incident was proscribed by section 409B. Accordingly, the psychologist's opinion as to what triggered the resurrection and revisiting of the long-buried memories of that earlier assault was excluded.

Your Honours, the submission that was made was that evidence of an incident with a natural father came within the exception in paragraph (b) and consequently was not excluded by section 409B and what is said there, with respect to the learned President, does not address or meet that argument.

GLEESON CJ: I do not want to take you out of the course of your argument, and I would invite you to come back to this at the end of your submissions, but at some stage before you finish can you just show us what is the basis for the President's attribution to the psychologist of a theory of repressed memory. Do not stay to deal with it now. That is an aspect of the judgment below that has puzzled me.

MR ODGERS: Yes. Your Honours, the only other exception we seek to rely on is paragraph (c). The critical words in paragraph (c) - clearly subparagraph (i) is satisfied, so the question is whether or not the evidence in question, that is the evidence of sexual abuse by the natural father, was relevant to whether the presence, and we say of injury, was attributable to the sexual intercourse alleged to have been had by the accused person. The injury we suggest is emotional injury or psychological injury and is the material suggesting sleeping problems and behavioural problems and so on.

GLEESON CJ: I am sorry, how do you satisfy (i) of (c); you have got to satisfy both (i) and (ii)?

MR ODGERS: Yes, I understand. Well, I am sorry, your Honour. (i) is satisfied. It was alleged that the accused had sexual intercourse with the complainant and the accused denied that; so that is satisfied.

GLEESON CJ: Right.

MR ODGERS: Then (ii), evidence that she had been sexually abused by her natural father was relevant to whether or not the psychological injuries of the complainant was attributable to the sexual intercourse alleged to have been had by the accused as distinct from attributable to the conduct of the natural father.

GLEESON CJ: I thought it was the fact that she had got over these injuries that was the give-away as far as the psychologist was concerned, and exonerated the appellant. I thought was he was saying was she was emotionally disturbed back in 1987, 1989, but she was not showing the same emotional disturbance in 1994.

MR ODGERS: As I understand it, he was saying the behavioural problems continued through; they did not get worse in 1992, 1993 - they did not go away but they did not get worse. The sleeping problems did diminish. Whether or not they went completely away, I am not sure he went so far as to say that, but his evidence was that they diminished. Assuming he had been called, there would have been evidence before the jury as to sleeping problems and behavioural problems during the relevant time, and in the trial, itself, there was such evidence of sleeping problems and behavioural problems, before the jury. Evidence that the complainant had been sexually assaulted by her natural father would be relevant to whether those problems were attributable to the actions of the accused.

Your Honours, if I could turn to the question of whether of not the evidence of Mr McCombie was severable, so to speak. The Court of Criminal Appeal held that it was not. We have put in written submissions at pages 15 to 17, and I will speak to those relatively briefly.

GLEESON CJ: Was it ever put at the trial as being severable. We keep talking about this as an issue of the admissibility of Mr McCombie's evidence.

MR ODGERS: Yes.

GLEESON CJ: Technically, the complaint that was made against the trial judge was that he declined to grant an adjournment to permit Mr McCombie to be called. Now, the reason he declined to grant the adjournment was because of a view he took about the effect of section 409B.

MR ODGERS: Yes.

GLEESON CJ: Did anybody submit to the trial judge that even if he were right in concluding that section 409B ruled out part of Mr McCombie's evidence, he should nevertheless grant an adjournment to permit the rest of his evidence to be put?

MR ODGERS: No, and, in my submission, that was inevitable because it was clear, in my submission, from what his Honour said, that he was ruling that Mr McCombie could not be called at all.

GLEESON CJ: It would be more accurate to say, was it not, that he was never invited to rule upon a part only of Mr McCombie's evidence?

MR ODGERS: It is true, yes, your Honour, but, I mean, the sequence of my events was this, in my respectful submission, that defence counsel says, "Here is the evidence of Mr McCombie. We want to call him to give evidence at the trial." The trial judge looks at it and rules, "You will not be permitted to call Mr McCombie to give this evidence", and does not suggest that he could be called for any purpose. It was a blanket ruling. You cannot call him, therefore, you are not going to get the adjournment.

HAYNE J: Well, is it a blanket ruling? Appeal book 13 is the highest, perhaps, it gets, is it not? There the trial judge speaks of the allegations that he, that is McCombie, makes in the report.

MR ODGERS: I rely both on those words but also on what his Honour did not say. His Honour understood that the adjournment was being sought in order to call Mr McCombie. He has made a ruling that the evidence of some or all of it, ambiguous, of evidence of Mr McCombie is inadmissible. He then proceeds to consider other bases for an adjournment. If there had been any possibility in the judge's mind that something from Mr McCombie would be admissible, one would have reasonably expected him to have flagged that question. Instead, he simply proceeded on the assumption that calling Mr McCombie was no longer a basis for an adjournment.

GLEESON CJ: Fortunately we have the benefit of the transcript of the argument before Judge Kirkham about this matter, which includes page 10.

MR ODGERS: Line, your Honour?

GLEESON CJ: Line 45. Now, the judge says to counsel:

If I rule against you on 409B that's the end of the story isn't it.

And he says that against the background of the argument that we can see set out on the preceding pages of the transcript.

HAYNE J: Particularly at 15 to 20 on page 10:

If your case is to suggest that it was not the accused, but it was the accused's -

and I assume it is the transcriber's interpolation:

natural father.

MR ODGERS: Yes, but, your Honours, in respect of what he says at line 45, in my submission, what he is saying is, "If I rule against you on 409B, we do not need to look at questions of expert evidence", which had been - - -

GLEESON CJ: That is right. Now, that is an assertion made by the judge that counsel does not have to accept, and that is the opportunity for counsel to raise the point that you now wish to raise.

MR ODGERS: In my submission, it must have been interpreted - the only reasonable interpretation of what happened is that defence counsel understood his Honour to be saying, "If I rule against you on 409B in respect of the totality of Mr McCombie's evidence we do not need to look at any of these other issues" because if defence counsel had understood him to be saying, "If I rule against you in respect of this specific question of whether or not the opinion of McCombie that there was a sexual assault by the natural father could be excluded by 409B" one would have reasonably expected defence counsel to have then said, "Well, I want the rest of it in". I mean, I made the submission at the end of the written submissions that there is no conceivable reason why defence counsel would not have asked to get in the rest of it. The only reasonable - - -

GLEESON CJ: Well, what exactly would the rest of it have amounted to?

MR ODGERS: An opinion that the complainant was not sexually assaulted by the accused because her behaviour during the relevant period was inconsistent with such assault.

GLEESON CJ: Without any opportunity on Mr McCombie to explain the significance, in his view, of her previous behaviour?

MR ODGERS: Well, your Honour, he could have gone a long way and it could have been quite persuasive evidence. As I have made the point in the written submissions, the evidence - the opinion that she had been sexually assaulted by the father did not in any way logically lead to the conclusion or support the conclusion that she had not been sexually assaulted by the accused. The only relevance of it was to provide an explanation of why she might make a false allegation and to explain how she could give the detail she did, but Mr McCombie could entirely adequately, and indeed there was simply nothing to prevent him expressing, forcefully and completely, the opinion that she was not sexually assaulted by the accused because of her behaviour, based on his understanding of her behaviour and the fact that she had - whether or not she had been sexually assaulted by the father did not have any bearing whatsoever on that issue.

HAYNE J: If that is right that would still leave, in my mind, a live question about the extent to which the course of proceedings below stands in your way to now raise the point that the negative evidence might have been led.

MR ODGERS: My submission is contained in the written submissions - at the very end of the written submissions, paragraph 26.

GAUDRON J: But, are you not right in saying, though, that - was the trial judge not right in saying that the evidence had to go so far as a prior sexual experience before it had any value at all to you?

MR ODGERS: I am sorry, I do not understand that question.

GAUDRON J: Well, was not Mr McCombie's evidence really incapable of severance in this sense: for the evidence to have any real value, from your point of view, it was necessary to explain her knowledge of sexual matters, and also - well it was necessary to do at least that. So therefore, one ultimately had to come up against section 409.

MR ODGERS: It was not necessary, your Honour. Obviously, it would benefit the defence, but it was not necessary. The defence would still have part of the cake, and part of the cake would be an expression of opinion by an expert, based on a number of matters, that she was not sexually assaulted by the accused.

GLEESON CJ: To put the same proposition in only, I think, a slightly different way: whatever view one might take about opinion evidence of this nature, and that is something to which you have yet to come, it would be a highly artificial result, would it not, to put in front of the jury an expurgated version of Mr McCombie's opinion, which eliminated all reference to his views about her prior sexual experience.

MR ODGERS: It would be artificial in the sense that the jury would not hear one of the reasons of Mr McCombie - - -

GLEESON CJ: And Mr McCombie could not be satisfactorily cross-examined about his opinion, could he?

MR ODGERS: Yes, he could, with respect, your Honour. To the extent that his opinion was that there was no relevant behaviour change during 1992 and 1993, he could have been perfectly adequately cross-examined about all of that. The point I keep making, and I will just make it one last time is that, logically speaking, whether she was sexually assaulted in 1989 had no link whatsoever to the question of whether or not she was sexually assaulted by the accused, none whatsoever, because, of course, she could have been sexually assaulted by both. Its only relevance was to provide an explanation as to why she might choose to make, why she might be motivated or prompted to make a false allegation.

It does not in any way lead to the conclusion that it was a false allegation. It only provides a possible explanation as to why there might have been a false allegation. It also, as her Honour Justice Gaudron points out, provides an explanation, which no doubt the jury would have been very interested to hear, as to how the complainant was able to give a reasonably detailed account of sexual activity.

GLEESON CJ: But, Mr Odgers, we are a long way removed from what defence counsel at the trial wanted to do, are we not? What defence counsel at the trial wanted to do was tell the jury that the real culprit was the girl's father.

MR ODGERS: Your Honour put that to me in virtually your first question to me, and my submission is what he really wanted to do was to get somebody who was an expert before the jury to say she was not sexually assaulted by the accused. As part of that process he would also get in before them - he wanted to get in before them an opinion that she was sexually assaulted by somebody else. But, in my submission, your Honour, that was secondary.

GAUDRON J: I am sorry, when I came to raise that point, Justice Hayne had asked you about the point not being taken. I am sorry, I just wanted to ensure that it was relevant.

MR ODGERS: I really cannot say any more than I have said. The Court of Criminal Appeal dealt with this matter at pages 223 to 224 in the judgement of the President, at line 45 on 223 over to line 50 on 224, and, really, everything that has passed between your Honours and myself in the last half hour is my submissions that the President was wrong in his approach. There was a relationship, we say - we accept - between sexual assault by the father and alleged sexual assault by the step-father, but it was not indispensable; it did not logically have any impact on the question of whether or not she was sexually assaulted by the accused as, indeed, the President seems to acknowledge at line 45 on 224:

the evidence that the complainant may have been sexually assaulted by her natural father provides no rational basis for concluding that she was not sexually assaulted by the appellant. The complainant may conceivably have been abused by both men.

Our submission is that supports the conclusion that there was no logical link between the two. Consequently, they could be severed.

GLEESON CJ: There is something gone wrong with the typing or printing on page 224, the last words, and the first words on 225.

MR ODGERS: Yes, your Honour; I had not noted that before.

GAUDRON J: "Taken as a whole".

MR ODGERS: My junior has suggested that it is "taken (as intended) as a whole", and I think that is correct. As I have said, we submit that it cannot be inferred that the defence counsel was approaching this on an all-or-nothing basis. It would be irrational. There is no tactical reason for it. There is an explanation for why defence counsel would have understood his Honour to be making a global ruling. There may well have been confusion. It may well have been his Honour was not but, in my submission, he was, because otherwise one would have expected his Honour to have said, "However, it may be that I can grant the adjournment, because there are things he could be called to say". He did not suggest that. He just simply said no adjournment on this basis because it is inadmissible. That is all I have to say about section 409B.

Turning to the Evidence Act questions, and particularly the opinion evidence provisions.

GLEESON CJ: These questions only arise if you are correct in what you have said so far?

MR ODGERS: Correct. No, not quite correct, because our submission is that if the evidence is excluded by 409B, the Court of Criminal Appeal can take it into account under section 6. We would not be making that submission if it was inadmissible under the opinion evidence provisions. We would be making the concession that, in those circumstances, the Court of Criminal Appeal would not - it would not be appropriate for them to take it into account.

GAUDRON J: Section 6 of what?

MR ODGERS: Of the Criminal Appeal Act, your Honour.

GAUDRON J: What does that say?

MR ODGERS: That is the standard form appeal provision.

GLEESON CJ: Miscarriage of justice.

MR ODGERS: Miscarriage of justice.

GLEESON CJ: You want to argue that, even if what you have said so far is wrong, nevertheless there was here a miscarriage of justice by the operation of section 409B?

MR ODGERS: Yes.

GLEESON CJ: That is the Grills point.

MR ODGERS: It is close to it.

GAUDRON J: On a miscarriage - there was not a fair trial.

MR ODGERS: Yes, as your Honour raised with me earlier, that is how we approach it. I will get to that after lunch, I think. Your Honours, the first proposition we make is that the common law rules relating to sexual history no longer have any work to do and are effectively replaced by the Evidence Act and the particular Chapter 3 rules of admissibility. Our submission is that the evidence in question was relevant and we have, in the written submissions, articulated at page 7 how we say it was relevant. If it is relevant, section 56 provides that it is admissible, except as provided by the Act. The only real issue in this case under the Evidence Act is whether it was excluded by section 76 which relates to opinion evidence. When I say it is the only real issue, in our submission there is no argument that can be or has been, indeed, advanced by my opponents to suggest that the tendency provisions or the coincidence provisions have any operation in this context.

GLEESON CJ: If you are right in this argument, and the natural father was still alive and were prosecuted, could this opinion be used by the Crown against him?

MR ODGERS: That is one of the many issues raised by the operation of the expert evidence provisions of the Evidence Act. I do not think I could give a yes or no answer to that because there would be many factors that would have to be borne in mind and including the operation of section 137. But it is possible, would be the answer I would give. Section 76 of the Evidence Act provides that:

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

That is a general exclusionary provision. The exception we rely upon is section 79:

If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

GLEESON CJ: We know that this opinion is not wholly based on any expert knowledge because it is based partly on a view as to the credibility of the complainant which, in turn, was partly based on what Mr McCombie had been told by the general practitioner and by the mother.

MR ODGERS: Yes. In my submission, there is nothing unusual - I mean, section 79 was clearly directed to recognise that experts will almost invariably be expressing opinions based partly on what they have themselves observed or been told. The critical issue is whether or not the opinion is substantially based on their expertise.

GLEESON CJ: Let us deal with that aspect of the opinion which identifies the culprit as the natural father. There were, I suppose, the following logical possibilities: the complainant had been sexually assaulted by nobody; or the complainant had been sexually assaulted as she claimed by the appellant; or the complainant had been sexually assaulted by her father; or the complainant had been sexually assaulted by both her father and the appellant; or the complainant had been sexually assaulted by some person or persons unknown. What was it that led Mr McCombie to select from amongst those possibilities the one that made the culprit the father and how was that based on his specialised knowledge?

MR ODGERS: I think, as I tried to put the argument before, the logic seems to be, "Based on what I have been told and including the, no doubt, detailed account of sexual activity, it may be concluded that she has been sexually assaulted by somebody at some stage in her life." He does not say that, but I would submit that that would be a perfectly logical conclusion. The question is, "When and by whom? Based on my expertise, I do not think she was sexually assaulted by the accused, taking into account her behaviour and what happened in the period 1992/1993."

McHUGH J: But is it not based on the fact, and he seems to say, she spent a month or so with her natural father and after that her sleep was disturbed and she used to call out "Don't do it, daddy".

MR ODGERS: And she had behavioural problems.

McHUGH J: And behavioural problems. On that foundation is mounted the conclusion that she has been sexually assaulted.

MR ODGERS: No, your Honour, I have been attempting to do it differently from that and I am just not - - -

McHUGH J: Sexually assaulted by the natural father.

MR ODGERS: Yes, I know, but I am not accepting your Honour's analysis of the logic, because it is not logical, so that is why I am not accepting it, I think. What, in my submission, is logical and would make sense of what Mr McCombie was really saying was: one, it is likely she was sexually assaulted by somebody at some stage in her life; two - - -

McHUGH J: Yes, but what is that based on?

MR ODGERS: Based on the fact that she is able to give detailed descriptions of sexual activity.

GAUDRON J: And behavioural problems.

MR ODGERS: The difficulty I have there, of course, is what his Honour the Chief Justice put to me, "Well, why would that point to sexual assault as distinct from non-sexual assault?" and I am not sure I can give an answer for that, and, certainly, Mr McCombie did not attempt to give an answer for that. Two, I do not think she was sexually assaulted by the accused because there was no relevant change in behaviour which is what I would have expected if she had been sexually assaulted by the accused. Her behaviour was steady. I mean, it was not good but it was not getting worse and her sleeping problems seemed to be diminishing during the relevant time; either diminished or gone away entirely.

However, as I said, the first proposition is she has been sexually assaulted by somebody and she had to get the knowledge from somebody. On the basis of what I am told, she has been having behavioural problems and sleeping problems since 19 - I think it is 1987 - ever since she spent a month alone with her father. Therefore, I make the logical leap, or jump, or step, that it is likely that she was sexually assaulted by her father.

GLEESON CJ: All of this against a background where he had had a great deal of input from the girl's mother, who was given an extremely bad time by the father and, as mentioned earlier, where he has formed a view adverse to the credibility of the girl.

McHUGH J: And, perhaps, might be added to that the fact that Mr G apparently turned up on two occasions at his office.

MR ODGERS: Yes, there is evidence of that.

McHUGH J: Mr G turned up. What Mr G said we do not know. What Mr G told Mr McCombie, we do not know.

MR ODGERS: That is true, your Honour. I think it can be inferred from the material that - - -

McHUGH J: Mr G turned up in a very distressed state.

MR ODGERS: Yes, there is no doubt that Mr G, from day one, had been vociferously denying his guilt and, no doubt, that would have been conveyed to Mr McCombie. But, in addition to that, of course, I think it can be inferred that the first person seen by the child after she had made the complaint to her mother was a general practitioner who had doubts about the correctness of the allegation and, no doubt, he may have expressed those doubts to Mr McCombie. Mr McCombie then, looking at all of this material, came to his opinion.

GLEESON CJ: But there is every reason for carefully scrutinising this to see whether or not Mr McCombie's opinion was based on specialised knowledge when we know he was getting a lot of input from people who had every motive to point the finger at the deceased natural father.

MR ODGERS: Yes, your Honour, but this cannot, in my respectful submission, lead to a conclusion that 79 is not satisfied. It would often be the case that experts get inputs from various people. All that - - -

GUMMOW J: No, Sir Richard Eggleston said once that "An expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law." You have to lay out the facts on which the opinion is given or the assumptions of fact on which the opinion is given.

MR ODGERS: Yes. I am not sure that there has been any breach of that here, your Honour.

GUMMOW J: Well, we do not know what Mr G said to him, for example.

MR ODGERS: But Mr McCombie articulated the reasons for his opinion. Implicitly, he is thereby asserting that these were totality of the reasons for his opinion. He is asserting that he was not influenced by these other matters.

GLEESON CJ: But we do not even know what, if anything, Mr McCombie asked the complainant about her father.

MR ODGERS: No, we do not.

GLEESON CJ: Well, that is a fairly striking omission in terms of an opinion that comes to the conclusion that the father did something to her.

MR ODGERS: I am sorry, your Honour, it has been pointed out to me that she was - in the report of Mr McCombie at page AB15, line 37:

In spite of these difficulties, C constantly state that she "couldn't remember" her natural father -

but, your Honour, to go back to principle, my submission is that 79 requires - - -

GLEESON CJ: May I, before you move on: did he believe her when she said that?

MR ODGERS: I do not know. Again, I will look to see if there is anything said in the report or the transcript as to his response.

GLEESON CJ: I just wondered whether he expressed his opinion on the factual assumption that C was or was not telling the truth when she said she "couldn't remember" her natural father.

MR ODGERS: Well, in my submission, a fair reading of what Mr McCombie was saying was that he did not find it necessary to make a determination on that question, that a fair reading of what he was saying was that the critical factor, in his opinion, was the absence of behavioural change and that all the other matters that your Honour has put to me about inconsistent statements and what he had been told by other people and various other matters were not things which he purported to take into account or to bear on his expression of opinion. I mean, the essence of his opinion and my submission is, the clear inference from what he says, is that the critical issue was absence of behavioural change.

GLEESON CJ: Could you state, in the summary form, what you take to be the expertise of the psychologist as distinct, for example, from a psychiatrist?

MR ODGERS: Special knowledge about the behaviour of people, and the link between behaviour and mental state, but that is just an off-the-cuff attempt, your Honour. I will attempt to define it more precisely over lunch.

HAYNE J: Can I take you back to the evidence that this man might have given had he been called. Could he have been asked the question, "Describe the history you took from this girl." Assumedly, you would say yes.

MR ODGERS: Yes.

HAYNE J: Could you describe the history that you obtained from any other person?

MR ODGERS: Yes.

HAYNE J: At least as to part, some of that may have been admissible.

MR ODGERS: Yes.

HAYNE J: Did you form an opinion on whether this girl had been exposed to sexual assault. It seems from page 16, line 26, he would have answered yes.

MR ODGERS: Yes.

HAYNE J: Did you expect behaviour or emotional disturbance as a result of the trauma of that? Assumedly, yes, see line 36. Did she exhibit those signs at the time identified consistent with the charges? Assumedly, the answer is no.

MR ODGERS: Yes.

HAYNE J: The difficulty we confront is that we are confronted, not with evidence, but with the adjournment; not with questions and answers, but with an undifferentiated report, never produced in the form of evidence at trial in the form in which evidence ought to be admitted.

MR ODGERS: Yes, and, of course, we submit that the defendant, the appellant lost the chance to do that and lost the opportunity to, at the very least, have questions of expertise and questions of the type that your Honours have been raising with me, ventilated in a voir dire at trial.

HAYNE J: Which may bring us back to the question of conduct of the trial. But you have made your submissions on that.

MR ODGERS: Yes, I have.

GLEESON CJ: And perhaps conduct of the appeal in the Court of Criminal Appeal. There is no affidavit, for example, saying, "If we had had the opportunity to put this evidence into proper shape, this is what Mr McCombie would have said".

MR ODGERS: No, there is not.

GAUDRON J: Well, these are difficulties that are not unusual when it relates to a ruling that the evidence is inadmissible. They are common in that situation. There is no doubt that you were asserting it was.

MR ODGERS: Yes.

McHUGH J: What I cannot quite follow, but you may be able to assist me, is that Mr McCombie seemed to accept that this sleep disturbance pattern had ended about 18 months before the present sexual offences were reported. That seemed to be a significant factor to him. Yet, when he saw the complainant he used this expression, "she was behaviour disturbed", which seems to indicate that she was disturbed at the time that he saw her, yet that seemed to have played no part in his conclusions.

MR ODGERS: But, your Honour, I had made the submission earlier that as I understood Mr McCombie he was saying that there was behavioural problems right back to 1987 - they had continued but they had not got worse. There had been sleeping problems, which is different, and they had diminished.

McHUGH J: I think that might be your gloss on it. It is very difficult to - - -

MR ODGERS: Your Honour, there is a big difference, with respect, between sleeping problems and behavioural problems in the sense of whether you tell lies; whether you, you know, get into trouble at school; whether you fight with your siblings.

McHUGH J: I understand that, but he seems to place no emphasis at all on the fact that she, herself, for example, was saying that she was seeing the face of a boy in a class who had asked her out, at the window. The mother had reported that the complainant was afraid to go to bed because of this event and because of the alleged behaviour of the accused, and yet none of this seems to have been of any relevance to this witness's opinion.

MR ODGERS: Again, I rely on what Justice Hayne said about this, that he could have been cross-examined about that at trial, but the appellant lost that chance.

HAYNE J: That is not quite what I said - - -

GLEESON CJ: That is the problem about the conduct of the trial, and it is a problem for us to apply section 79. We can only seek to apply section 79 to the material that Judge Kirkham had in front of him.

GAUDRON J: He did not have the - - -

MR ODGERS: What - - -

GLEESON CJ: To the material that was put before Judge Kirkham on the application for an adjournment.

MR ODGERS: Yes, your Honour, but - - -

GLEESON CJ: It is not for us to endeavour to imagine possible forms of evidence that Mr McCombie might have given that might have complied with section 79.

MR ODGERS: Yes, but I make two submissions: the first is that, on the face of it, he asserted expertise and, on the face of it, his opinion was certainly based, and we say substantially based, on his expertise, his special knowledge, on the face of it. What might have happened in terms of cross-examination does not remove that proposition, so therefore, on the face of it, section 79 is satisfied, and we also say that even if it was not, that because this was something dealt with at this very preliminary stage, that the test that should have been applied by the trial judge and should be applied by this Court is not an overly rigorous one of saying, "Well, was section 79 satisfied?", but rather, we submit, should be, "Was there at least a prima facie case for satisfying section 79, such that an adjournment should be allowed to permit Mr McCombie to be called and for these matters to be fully ventilated?" and, we submit that is the proper approach that should have been taken. Obviously it was not relevant to the trial judge, given his ruling, but should have been taken by the Court of Criminal Appeal and should be taken, we say, by this Court.

GLEESON CJ: But the question that we have to decide is not, is it theoretically possible that Mr McCombie, if called, could have given some kind of admissible opinion evidence?

MR ODGERS: I have not submitted that. I have submitted that the question should be, assuming my first submission is rejected, that is, my first submission that, on the face of it, section 79 is satisfied, but assuming that is rejected, my submission is, if there was a prima facie basis for satisfying section 79, then it was a miscarriage of justice to not permit the appellant the opportunity to have Mr McCombie called and attempt to unambiguously satisfy section 79.

GLEESON CJ: Mr Odgers, has there been any authority on the meaning of that expression "specialised knowledge" in section 79?

MR ODGERS: I am not aware of any Australian authority.

GLEESON CJ: Is there any relevance to the present argument of those American decisions about falsifiability?

MR ODGERS: Your Honours will see the written submissions that we have made in respect of that. We say very limited relevance. The written submissions are at pages 7, 8, 9 and particularly 10, paragraph 14, where we submit that the decision of the United States Supreme Court in Daubert v Merrill Dow Pharmaceutical Inc should not be applied to section 79.

But, your Honour, can I deal with that in a little bit more detail later rather than right now?

GLEESON CJ: Yes.

MR ODGERS: The relevant expertise of Mr McCombie is sought to be summarised at page 8 of the written submissions. The point I really am trying to stress is that, while there are many things that he could have been cross-examined about and many questions that might be asked, he made a blanket assertion of relevant expertise.

GLEESON CJ: Did the Court of Criminal Appeal deal with this issue?

MR ODGERS: Not directly. There was some references to - - -

GLEESON CJ: They seem to have assumed it in your favour.

MR ODGERS: They did not feel it necessary to decide it, because they ruled that 409B had the effect that the trial judge said it had.

GLEESON CJ: I notice the trial judge himself raised this issue as his first reaction to the application for an adjournment, and he was then moved on to 409B by the argument.

MR ODGERS: I think the Crown Prosecutor raised it as well. I have made the submission a moment ago that, assuming against my submission that the view is taken that 79 was not satisfied on the material before the trial judge and my submission then becomes that the defendant should have had the opportunity to satisfy it, it is not entirely clear, but in the transcript at pages 4 to 5 of the appeal book, in my submission, a fair reading of that suggests, particularly at the top of page 5, that defence counsel was seeking to have 409B dealt with in totality, but was seeking to have any question of expertise deferred until the trial began. It is ambiguous but the words at the top of page 5:

It's not the wish of the parties that your Honour go into the amount of detail that was necessary to determine this issue if the trial proceeds -

and then he says:

There is an argument as to whether 409B applies at all.

It does seem that defence counsel was really trying to have the issue limited to 409B. Whether or not that is legitimate is another matter, but it does seem that he was flagging a submission that if 409B did not apply, that the adjournment should be permitted in order to have the questions of expertise fully ventilated at trial, and we rely on that.

McHUGH J: You are coming back after lunch, you say, but there is one thing that you have to deal with for my purpose. I have read this report again and again and I cannot come to any other conclusion at the moment than that his opinion that she was sexually assaulted by her natural father is based entirely on the fact that this behavioural change took place after the month with the natural father.

MR ODGERS: I accept that, your Honour.

McHUGH J: Yes.

MR ODGERS: Yes, that is correct, I think. I think it is correct.

McHUGH J: But I thought you were saying that he also concluded that she had been sexually assaulted because she asserted that she had been sexually assaulted, and that, coupled with the behavioural changes after the month with the father, gave rise to this witness's conclusion.

MR ODGERS: No.

McHUGH J: You were not saying that?

MR ODGERS: No, I will try one more time. Likely she was sexually abused by somebody at some time - - -

McHUGH J: Yes, but where does that come from, because Dr Watts had said her accounting of the story was inconsistent, it seemed as if she was rejected. It was almost as if Dr Watts did not accept her and there is nothing in Mr McCombie's reports to indicate that he thought she was telling the truth.

MR ODGERS: No, but I am relying on something which is not explicit in the report or the evidence which is that logically the detail of her allegations suggested that she did have knowledge of sexual activity which supported the conclusion that she had been sexually abused at some time in her life. That is all I am saying. Then, the opinion that she was not sexually assaulted by the accused, based on absence of behavioural change, then, completely unrelated, we say, opinion that she was sexually assaulted by the father back in 1987 which would provide an explanation for the knowledge and would also provide an explanation for why she might choose to make a false allegation against her - the accused.

McHUGH J: Well, now, how does section 79 operate in this context, then, the context that you have just outlined, because it seems to me it is now crucial to your case that this opinion is based on an implication, the implication being that Mr McCombie concluded from the fact that she gave this detailed account of sexual assault that she must have been sexually assaulted?

MR ODGERS: No, it is not crucial, your Honour, because what is crucial is the opinion that she was not sexually assaulted by the accused. As I keep saying, that is what is crucial and it did not matter whether she had been sexually assaulted by somebody else at some stage, that was not critically important to the defence. What the defence, above all, wanted to get before the jury is an opinion that she was not sexually assaulted by the accused and that could be given completely independently of all the other matters, in Mr McCombie's opinion.

McHUGH J: And that is based entirely on the fact that she does not suffer any - failed to demonstrate any sleep disturbance or nightmares after this time?

MR ODGERS: Or change in behavioural problems. It appears to be very largely - I cannot say, entirely - based on the absence of behavioural change, or increase in behavioural problems, if you are including sleep disturbance as one aspect of that.

McHUGH J: This case is increasingly looking to me as if it is not a suitable vehicle for the determining of these questions, I have to say, that is, the questions under both Acts, 409B and 79.

MR ODGERS: In my submission, it is.

McHUGH J: Anyway, you are still in business, you have a grant of special leave at the moment.

MR ODGERS: I will keep going until I collapse. Your Honours, I have summarised the expertise at page 8 of the written submissions. I do stress the point that none of the asserted expertise was the subject of challenge in the committal proceeding, so that material was there before the trial judge in an essentially unchallenged form. The details were not explored but we say that that is not something that prejudices the appellant.

GLEESON CJ: Is there any provision of the Evidence Act that deals with the question that Justice Gummow raised with you earlier, that is to say, the form in which opinion evidence ought to be expressed?

MR ODGERS: No.

GLEESON CJ: So that one, by looking at it, can answer the questions raised by section 79? One of the reasons why experts are required to express their opinions in a certain form is so that you can tell the extent to which they are based on their specialised knowledge, and the extent to which they are based on, what was earlier referred to as "other forms of input".

MR ODGERS: Yes. No, there is nothing in the Evidence Act on that question.

GLEESON CJ: That would suggest that the common law rules then still apply in that respect.

MR ODGERS: Well, as a matter of logic, your Honour, it must go with that, it clearly is the case that the burden of proof was on the defendant to establish the preconditions for section 79, and I - - -

GLEESON CJ: The very language of section 79 carries with it, does it not, some consequences in terms of the form that an expert opinion must take?

MR ODGERS: It is necessary for a judge to be satisfied, on the evidence before him or her, that the expressions of opinion, each and every one of them, each one must be looked at separately, that each and every one of them was, at the very least, substantially based on his specialised knowledge.

GAUDRON J: Ultimately, in every case of opinion evidence, there is a factual content to it and the opinion stands or falls on the acceptance of the factual content; you cannot ever get away from that and, in this case, there would have been some need very likely to establish the facts through evidence from the mother and so on, and if that was established, then it would be by reference to that evidence that the opinion evidence stood or fell.

MR ODGERS: Yes, your Honour. I understood, however, the Chief Justice to be referring, not so much to the factual basis, but to the satisfaction of the requirement that the opinion was substantially based on the expertise and - - -

GAUDRON J: Or it's knowledge.

MR ODGERS: I am sorry, well, yes. I used expertise and specialised knowledge really, interchangeably. I think that was the intention of the Law Reform Commission.

GUMMOW J: But there would have been a necessity to identify and articulate any assumptions of fact, surely.

MR ODGERS: Well, I am not sure that is required by section 79, your Honour. I mean, I agree with you that that makes sense, but it is not required by section 79. And indeed, I think when I take your Honours to what the Law Reform Commission said, it was the intention of the Law Reform Commission that the matter your Honour has just raised with me would be a matter going possibly to discretionary exclusion, or more likely, to cross-examination once the evidence is admitted.

GUMMOW J: That would be great fun in a Part 4 case under the Trade Practices Act where someone is expounding about market, in litigation in which these sections would apply.

MR ODGERS: It may well be that the proper exercise - - -

GUMMOW J: You have to think, when you apply this Act, it applies not just to this sort of case - - -

MR ODGERS: I understand that, your Honour

GUMMOW J: - - - it applies right through the legal system in all sorts of circumstances.

MR ODGERS: Your Honour, the fundamental - - -

GUMMOW J: That sort of course would produce a breakdown in the legal system in Part 4 cases, that is all I can say to you.

MR ODGERS: With respect, no, your Honour, because the critical approach of the Law Reform Commission was to say, these matters cannot be determined - - -

GUMMOW J: Did the Law Reform Commission consider what the Full Federal Court had said in Arnotts in 24 FCR 313, at page 341?

MR ODGERS: It is unlikely, your Honour, because the reports were before Arnott was decided. But, your Honour, the point I am making is that there is a distinction between - I am not saying the evidence would have got in, the evidence you are referring to, it is just simply that you would, instead of applying a blanket rule, you would say, in a proper exercise of discretion, it should not be admitted, that is all I am saying.

McHUGH J: But part of the problem is the way this Act is drafted, is it not, because 76 takes its stand, it says:

Evidence of an opinion is not admissible to prove the existence of a fact -

Then, section 79 says, well, that section does not apply to an opinion based on specialised knowledge. But that tells you nothing. It negates section 76. Where do you get the basis then for the positive case about the opinion rule? Do you follow what I am putting to you?

MR ODGERS: Yes, I do, and the answer is, you go back to section 56. Section 56 says if it is relevant, it is admissible subject to the Act. If 76 does not apply, then the only question then turns - is one of discretion. That is how you approach it.

GLEESON CJ: It is a quarter to one, Mr Odgers. Can I raise, before we adjourn, a procedural matter you might like to think of over the adjournment? If you look at page 213 of the appeal book, you will see that it appears that the proceedings were conducted in the Court of Criminal Appeal under an anonomised reference. Yet, if we look at the written submissions in the present case and the proceedings in this Court, they are not anonomised. There is a practice direction that deals with this question and it includes reference to applications made, or that may be made to this Court, to continue a mode of reference that has been adopted in a court below. Can you let us know at 2.15 pm what, if any, application you want to make along those lines?

MR ODGERS: Yes, your Honour.

GLEESON CJ: We will adjourn until 2.15 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GLEESON CJ: Yes, Mr Odgers.

MR ODGERS: Your Honour, I do make an application for the use of initials in respect of the appellant.

GLEESON CJ: Is that opposed, Mr Crown?

MR HOSKING: It is not, your Honour, no.

GLEESON CJ: Are you happy with that? Yes, we will give him an initials HG.

MR ODGERS: Your Honours, there are a couple of matters, well, actually four matters which I need to go through quickly to respond to matters raised before lunch.

The first is, I think your Honour the Chief Justice asked what was the basis for the President's attribution to the psychologist of the proposition that the complainant repressed her memory of the sexual assault of her father.

GLEESON CJ: Yes.

MR ODGERS: That is to be found in the report of Mr McCombie, particularly at appeal book 17, lines 7 to 15, where he says:

I felt that this sexual assault had been buried in response to the trauma of it. I felt that the trauma had been resurrected by both the "stranger danger" lecture and by her resentment at G for his attempts at controlling her in the home. I felt that C's inconsistency in her retelling of her story was a response to her confused memories about her past experiences and to a conscious attempt to implicate G, to punish him.

GLEESON CJ: So, she is being deliberately dishonest?

MR ODGERS: Mr McCombie is not entirely consistent about that. He said at page 26, line 1:

I think she believed it herself as being true - - -

Well, in fact, that evidence was then disallowed. It appears, your Honour, that Mr McCombie in a sense was having it a bit both ways, that he thought that she - I think he took the view that she had no memory, or confused memories about what happened with her father, that she was deliberately intending to punish Mr G for various matters and that she fused the confused memories with that intention. That does not necessarily lead to the conclusion that she was fully aware that she was lying. It could have been that her mental processes were not entirely one directional, if I could use that term. I think the point is that Mr McCombie did not attempt to resolve that question because it may well have been he took the view that it was not necessary, that the question he had to address was whether or not her account of an assault by the accused was reliable and he formed the view that it was not and whether that was the result of lies or confusion or a number of other things, at the end of the day, was not particularly germane.

There was a question raised as to - yes, it was put to me, I think again by the Chief Justice, that Mr McCombie saw the appellant at the time when he was seeing the complainant and her mother.

The evidence is that, at page 29, line 55, that he only met the appellant three months after he had finished seeing the complainant and her mother. I have to, of course, concede that the report was written some time later but at the top of page 30 it appears to be pretty clear that he is saying that he had formed the opinion that the complainant was not reliable. He used the words, the complainant's "voracity or reliability". So he is not really choosing - I make the point again that he puts it really in the alternative and when he spoke to the appellant he passed on that opinion to him and advised him to go and see DOCS.

We looked for evidence in the materials for the proposition that when the psychologist referred the matter to DOCS, it was my understanding that he had told DOCS that he thought that the complainant was not reliable, that he had to refer because of the legislation. However none of us have been able to find any reference to that in the materials.

Lastly, your Honour the Chief Justice asked me what is a psychologist? In my submission, a psychologist is a mental health professional with tertiary qualifications and membership of a professional association with expertise in human cognition, emotion and behaviour and expertise in the assessment, measurement and treatment of those three things. The main difference between a psychologist and a psychiatrist is that psychologists are not medical personnel and do not provide medication.

GUMMOW J: What about treatment?

MR ODGERS: They do provide treatment. They both provide treatment, but not by means of medicine. Psychiatrists do not have the same expertise in relation to measurement of cognition, emotion and behaviour.

McHUGH J: Well, looking at page 30/31, some cross-examiner is going to have some fun with Mr McCombie if this evidence is allowed. It appears from his notes that on 26 November Mrs P reported that C had had a dream about birds that scared her - that seems totally inconsistent with his report - and at line 8 that she told Mr McCombie that C was becoming more demanding and emotional at this time. It does seem to indicate that her behaviour has got worse since these allegations.

MR ODGERS: Your Honour, I think, if I am not putting words into Mr McCombie's mouth, no doubt his response would be that the whole public notification of this and her being required to speak to doctors and psychologists and people like that, would no doubt be somewhat traumatic and I am not sure, with respect, that there is any great inconsistency.

Your Honours, if I could now take you to what the Law Reform Commission said about the relevant provisions of the Act.

HAYNE J: In aid of what proposition?

MR ODGERS: In aid of the interpretation of section 79.

HAYNE J: I understand that, but what proposition do you make about section 79?

MR ODGERS: Yes. I will make some other propositions first: section 80 makes it clear that expert opinion is not to be excluded by reason of the fact that it is "a matter of common knowledge". That is another way of saying, not to be excluded on the basis that it is within the experience of the jury, or the judge in this case, and there are authorities, certainly at common law, which suggest that that is an important test relating to admissibility of expert evidence and, in my submission, section 80 makes it clear that that is no longer the law under the Evidence Act. Section 80 also makes it clear that the ultimate issue rule, to the extent that such exists at common law, is not the law under the Evidence Act.

On the question of the meaning of section 79, really my central submission is that there is no - this may be going too far, but - area of expertise test, but I think that has got to be too far and I would have to qualify that.

What I certainly would be submitting was that the common laws concern to ensure that there was an established field of expertise is intended to be dealt with not under section 79, but under discretionary considerations.

GAUDRON J: There has to be specialised knowledge, has there not?

MR ODGERS: Yes, there has.

GAUDRON J: Earlier in the day you were using that interchangeably with expertise.

MR ODGERS: Yes.

GLEESON CJ: Is astrology a field of specialised knowledge?

MR ODGERS: It was because I am appreciating the point your Honours are making that I was hesitating. It may be that there is a fine distinction between - perhaps this is the answer - that it is not necessary to show for the purpose of section 79 that there is a reliable field of expertise, or an accepted field of expertise, that something less than that is necessary derived from the concept of knowledge.

GAUDRON J: So, astrology passes the first test.

GLEESON CJ: And what use to be called phrenology - bumps on the heads explain people's character.

MR ODGERS: I hesitate to put that submission because it does seem somewhat implausible. I always have my fallback position which is - - -

GAUDRON J: Well, maybe it is not knowledge in those cases.

MR ODGERS: Quite, your Honour. The difficulty is in working out precisely what "knowledge" means.

GLEESON CJ: Exactly, in days - and this is what gave rise, as I understand it, to the Dauber ruling, whether or not one agrees with it. It was what rendered necessary the attempt to come to grips with this issue in days when junk science is so vigorously at large in various places, including the courts.

MR ODGERS: Yes, perhaps more so in the United States than here, your Honour, but nevertheless, it was an issue which concerned the Supreme Court, although it is interesting to note - I go slightly off at a tangent here - that the Supreme Court believe that it was loosening up the rules relating to admissibility of expert evidence when it handed down its decision because the court considered that to require that there be a recognised field of expertise imposed, and certainly did in the case of Daubert, where it was dealing with research into the birth defects relating to a particular drug, that requiring acceptance in the general scientific community was a more demanding test than meeting some threshold requirements of reliability. Having said that, I accept that one consequence of Daubert is that in other circumstances it may well be a more demanding test than that traditionally applied in the United States through cases like Frye requiring acceptance, or general recognition.

HAYNE J: What is the proposition you make about section 79? I still do not understand it.

MR ODGERS: That what is required is knowledge, which carries with it a requirement of - I am not sure I can answer the question at the moment, your Honour. If it would assist, I can take your Honour to what the Law Reform Commission said, and it may be that will help me.

HAYNE J: Mr Odgers, it may but at some point, I would be much assisted by knowing what you say section 79 means and how it applies in this case. Not how it may apply in other cases, though that may illuminate, but how it applies in this case.

MR ODGERS: Yes. Well I think that may be easier for me to answer. We say that Mr McCombie had specialised knowledge of a psychologist, and I have indicated what we say that knowledge is. He also asserted, more specifically, knowledge regarding the behaviour of children who have been sexually assaulted and, in particular, knowledge of how they generally, or tend to behave after the assault by way of manifesting behaviours as a result of the assault.

We say that whatever the precise meaning of the term "specialised knowledge" that there was sufficient evidence to establish those matters and, consequently, the requirements of 79 were met in respect of, we say, every single opinion expressed by Mr McCombie, but at least if that is not accepted, the vast bulk of the opinions expressed by Mr McCombie. Of course, for the purposes of this case all we need to do, I think, is to establish that at least some of the opinions expressed by Mr McCombie were based, substantially, on specialised knowledge.

GLEESON CJ: It was that part of his opinion that the sexual abuse had occurred some years before the child said it occurred and that the perpetrator was the father, not the appellant, that attracted 409B, was it not?

MR ODGERS: Yes, that is true.

GLEESON CJ: So, it is that part that you must be grappling with at this point of your argument.

MR ODGERS: Well, I am not sure that is correct, your Honour, because as I understand it the submission that is made against me and the appellant is that virtually the entirety of Mr McCombie's evidence was inadmissible by reason of the Evidence Act provisions, even if some of it was not excluded by 409B.

McHUGH J: When the section talks abut "specialised knowledge", does it mean the field of knowledge with which the case is concerned or is it talking about a wider body of knowledge? Take this case, obviously psychology is a field of specialised knowledge but this witness did not say that the type of knowledge that he asserted in relation to children was part of that knowledge, did he? He seemed to assert this was perhaps experience of his own.

MR ODGERS: In my submission, a fair reading of what he said was that he was asserting that. Psychologists, and particularly psychologists who deal with children who have been sexually abused, have expertise as to their general behaviour. He was expressing the proposition that such children tend to behave in certain ways which, in my submission, clearly carried with it the implication that he was asserting that this was an area of expertise that he possessed.

GLEESON CJ: Was motherhood an area of expertise?

MR ODGERS: Motherhood?

GLEESON CJ: Yes. A lot of mothers have a lot of experience with the behaviour of abused children. Is that specialised knowledge?

MR ODGERS: Yes, it is possible that it would meet the test.

McHUGH J: But in so far as he identified the father, is that specialised knowledge or is that a finding or an opinion of his which derived from it?

MR ODGERS: In respect of that, if the logic of it is, as I have submitted, that it was based on the behaviour of the complainant from 1987 onwards, then to the extent that it was based on that, yes, because he has asserted that as a psychologist, and a psychologist with his experience, he was able to talk with specialised knowledge about the behaviour of children who have been sexually assaulted and, based on that, he formed the view that the complainant - and other things, it is not wholly based on that but substantially based on that - he formed the view that the complainant had been sexually assaulted by her father.

GLEESON CJ: To isolate the problem, let us get away from any difficulties that might arise in relation to sexual assaults, as distinct from others, and from the expertise of psychologists, as distinct from others. Suppose an orthopaedic surgeon, with undoubted expertise and specialised knowledge in relation to physical trauma, was investigating a patient who said that he had a broken arm as a result of a work-related injury. And the orthopaedic surgeon was writing a report, either for the patient's union or for the employer's insurance company, it would not matter which, and as a result of a history he took from the patient, and as a result of some things that some other people told him, he expressed the opinion that although the patient had, indeed, suffered a trauma that resulted in a broken arm, the trauma did not result from the accident at work but resulted from a fight that he had been in in a hotel the night before.

Now that last part of the opinion would plainly be outside the specialised knowledge of the orthopaedic surgeon. It would not have anything to do with his expertise, although it might be a very logical and plausible conclusion to reach. And one step in reaching that conclusion might have been that there was something about the patient's description of the supposedly work-related accident that was not consistent with what he was doing at work that led him - so there might be an exercise of expertise at some step along the way. But the ultimate opinion, that is that this resulted from a fight in a pub the night before, had nothing to do with his expertise.

MR ODGERS: I accept what your Honour is saying, but all I can say is that as a general proposition it is necessary to work out what precise opinion you are talking about, and to answer the question in respect of that particular opinion, is it based substantially on specialised knowledge possessed by the expert.

HAYNE J: So, to embroider the Chief Justice's example just a little, it may be within the orthopaedic surgeon's expertise to say that "a crushing injury of the kind described by the worker would ordinarily be accompanied by severe bruising at or about the site of the wound and I saw none".

MR ODGERS: Yes. It may well be that you can say in some opinions, well, obviously he has specialised knowledge and that is the basis of it. In others, you might come to the opposite conclusion that there is just no way you could relate the opinion to some specialised knowledge. In others it may be a matter of you need to look carefully, and to see, firstly, whether or not specialised knowledge had anything to do with the opinion, and secondly, if it did, that it was a substantial part of the opinion. If the answer to that is, yes, then 79 is satisfied. Section 79 makes it clear that the knowledge is not necessarily based on training or study; it may be based on experience. I do not think there is any great controversy about that.

McHUGH J: Do opinions include predictions? Supposing a finance analyst said, "I have studied the history of stock markets for the last 60 years, and I am of the view that the market will rise 1,000 points between now and the end of next year". Is that admissible?

HAYNE J: Probably caught by public policy about gambling, I would have thought, would it not, Mr Odgers?

MR ODGERS: I am indebted to your Honour. I would have thought usually, your Honour, it would not be relevant.

McHUGH J: Let us take another example: supposing it is a Treasury official. The plaintiff calls him; he wants to prove what the state of the economy will be in 12 months time, or two years time, for the purpose of determining a wages claim. Is the Treasury official's forecast as to the growth rate of the economy relevant?

MR ODGERS: I can see nothing in the opinion provisions which would preclude that. Acknowledging that I have not answered your Honour Justice Hayne's question as to the precise meaning of "specialised knowledge", I will take your Honours to what the Law Reform Commission said, and that may provide me with some assistance. The relevant parts are in Law Reform Commission Interim Report No 26 at paragraph 742 and onwards - volume one, I should say, page 411.

I will not read that Act out. It is paragraph 743, and again I will not read it all out because it is not presently really an issue. The Law Reform Commission indicated that it intended to abrogate, what is called by the Commission the common knowledge rule, and it explains why it is doing that and what is intended by, particularly section 80, which I took your Honours to earlier. More relevantly, however, on page 412 under the heading "Field of Expertise", they said this:

Reference has been made to two recent cases that have suggested that the expert must be able to point to a relevant accepted `field of expertise' and the use of accepted theories and techniques. Quite what constitutes such a field remains a matter for speculation. There are major difficulties in implementing such a test. In the United States, the test known as the Frye test was adopted in many States. More recently, however, it has been assailed from many quarters as being `arbitrary' and `impossible to implement' because of the difficulties of defining the actual `field' in each instance and then of determining the existence of accepted theories and techniques. It also can exclude evidence which the courts should have before them.

It is proposed, therefore, not to introduce the `field of expertise' test.

GLEESON CJ: Where does that leave astrology?

MR ODGERS: I always have a fallback position of discretion but, putting that to one side, it raises yet again the question that Justice Hayne asked me, and all of you, I am sure, want an answer to, which is what exactly does "specialised knowledge" mean? As I say, I will try to answer it before the day is out.

HAYNE J: Can I offer this as at least a ground for debate? Section 79 speaks of "training, study or experience".

MR ODGERS: Yes.

HAYNE J: Let it be assumed an expert seeks to give an opinion about the effect of a particular kind of trauma on an individual. Effects of trauma on people might form part of that expert's general training. If the person concerned is a young person, that expert might draw on training plus particular study. I spent X years studying young people and the literature in the area. If it is a young person in a sexual assault case, it may be training, study and experience. Is not then the inquiry that is suggested by section 79 an inquiry that depends upon the particular opinion that is advanced and the particular basis that the witness would seek to ascribe for giving that opinion.

GLEESON CJ: And I would add, an inquiry that may only be possible to conduct if the opinion is expressed in proper form.

MR ODGERS: I accept all of that, your Honour. What I have difficulty with and continue to have difficulty with is what the criteria are for determining whether or not the basis, which is derived from "training, study or experience", truly is specialised knowledge. The question is, what does that term mean and what does it require to be met?

GLEESON CJ: One practical solution that is often available to deal with a problem like this lies in the use of literature and many people who are challenged under the old field of expertise test would seek to justify their expertise and their opinions by reference to a body of literature.

MR ODGERS: Yes, your Honour. One of the criteria which was referred to in Daubert was that there is - perhaps it is not quite the same but - published articles on the topic.

HAYNE J: Inviting reasoned and scholarly debate.

MR ODGERS: Yes, which in turn is premised on the assumption that there is some test of reliability and I am obviously having difficulty in disputing the proposition that there is some element of reliability which has to be demonstrated. I do not want to make that concession just yet because I have not quite thought it through.

HAYNE J: But the doctor who palpates the patient abdomen and observes the patient exhibiting pain may opine that the patient is suffering from appendicitis, but another physician confronted with the same patient may say it is nothing but indigestion. The fact that experts may differ does not conclude the issue, does it?

MR ODGERS: No, plainly that is correct, your Honour, but, again, saying what it is not does not necessarily clarify what it is.

GLEESON CJ: It is a little difficult, is it not, notwithstanding what the Law Reform Commission said, to resist the conclusion that, at least in many cases the concept of specialised knowledge will raise, for argument, much the same sort of issues as were raised by the field of expertise test?

MR ODGERS: Your Honours, it is obvious I am having difficulty.

HAYNE J: And thus, in the present case, there may be serious difficulty in the notion that this so-called expert could stand up and say, "He did not do it, X did it", but altogether different considerations may arise - - -

MR ODGERS: That is why I will not make that concession, your Honour, because this expert asserted, either explicitly or implicitly, expertise, in my submission, in respect of almost every opinion he expressed. He was not challenged on that in the committal proceedings and on that material, which has to be accepted for the purposes of this exercise, he had the requisite specialised knowledge. There may be an issue as to whether or not his each and every opinion was based substantially on that specialised knowledge, I make that concession, but there was essentially a blanket assertion of specialised knowledge. Yes, I have conceded that that could be the subject of very interesting questions and cross-examination, but, for purposes of this exercise, your Honours, the defendant must have the benefit of that blanket assertion.

Your Honours, continuing on, there is a reference to the ultimate issue rule which again I will not read out. There is more discussion of the problem of field of expertise and novel scientific evidence at paragraph 744. The Commission said:

The discretionary clauses referred to above would be available in relation to novel scientific evidence. In this area the United States experience serves as a harbinger of what the Australian jurisdictions can expect, attempts having recently been made to use evidence from voiceprint analysis.....Problems can arise where different

. different experts give widely varying opinions upon the reliability or validity of techniques.....

. there are insufficient experts available to assist the courts -

and so on.

Under these circumstances the tribunal of fact may be in an extremely difficult position when called upon to decide whether or not to make use of the novel scientific evidence. Considerable time may be wasted. It is difficult, however, to develop appropriate controls. Reference has been made to the Frye test under which the court may exclude expert opinion evidence based on techniques or theories that are not generally accepted in a recognised field of knowledge or skill. However, the Frye test has attracted criticism as to both its theoretical bases and its implementation. It also excludes much valuable, reliable scientific evidence. There may, for example, be a number of different schools of thought among experts.

GLEESON CJ: What would have raised that question is if, as suggested as a possibility earlier, the natural father of this child had lived and an expert in repressed memory syndrome had come along and said, "The father is the guilty one. The child has repressed her memory", and that constitute the sole evidence against the accused.

MR ODGERS: Yes.

GLEESON CJ: Now, how would this reference to "specialised knowledge" apply to evidence of repressed memory syndrome?

MR ODGERS: I suspect that the test would be met without going into detail, but that there would be very strong reasons for discretionary exclusion under 137 or 135. Paragraph 745 continues on with the difficulties relating to this problem and then at 747:

What is required is a power to exclude expert opinion evidence in extreme cases when it becomes apparent that its probative value is clearly outweighed by negative factors. Attempts have been made in the United States to identify guarantees of reliability the absence of which would lead to non-admissibility of scientific evidence. The Research Paper proposal included a discretion to be exercised where the opinion was based on techniques or theories . . . `the reliability or accuracy of which cannot reasonably be assessed by the court'. This however, could exclude much evidence which should be admitted. Expert opinion evidence is often based on techniques and theories the reliability or accuracy of which courts cannot reasonably assess and often their accuracy or reliability is not disputed by the parties.

GLEESON CJ: Was there not a recent decision of the Victorian Court of Appeal or the Victorian Supreme Court about this emerging science by which you make judgments about people's patterns of speech, as to the reliability of confessions?

MR ODGERS: I am not aware of that, your Honour. I will make inquiries and obtain it for your Honours, if that would be of assistance. Near the end of that paragraph:

Demonstrated lack of reliability or comprehensibility of opinions expressed thus goes not to admissibility of those opinions but to the weight to be attached to them. Reliance is, therefore, placed upon the protections inherent in the adversary conduct f trials and the nature of cross-examination, as well as in the fairness of the judge's summing up to the jury, when there is one.

748. The courts need to be able to exclude evidence because of the prejudicial effects that it may have, its questionable reliability, and its tendency to mislead, confuse or require undue time and cost. On balance, the discretionary provisions are the best solution and a positive means of expediting court proceedings in clear cases should the necessary concern about the effects of the evidence arise. They provide a safeguard to meet the challenge of new scientific theories and inventions that parties will be seeking to bring before the courts.

The difficulty I have, and I appreciate your Honours have, is then, well what work does the term "specialised knowledge" perform? At this stage I am really not able to assist your Honours. The Law Reform Commission seemed to take the view that questions of reliability were left to the discretion, and were not to be dealt with under 79.

Your Honours, the final report I will not take your Honours to, but essentially endorsed everything that had been said in the interim report. That is to be found at paragraph 151 of the final report.

Your Honour the Chief Justice raised the question of the possible application of the decision in Daubert under section 79. I will take your Honours to that case, if I might. While my junior is getting that, he has pointed out something which I think I should mention, which is that there is a test of rationality, not reliability, but rationality under the test of relevance in section 55. Evidence is not relevant and, therefore, not admissible, unless it could rationally affect the probability of the existence of the fact in issue. Consequently, I think matters going to astrology would be unlikely to satisfy that test and you would not need to go to section 79.

GUMMOW J: But the fact in issue itself may not be rational.

MR ODGERS: The fact in issue might be - well quite. Yes, thank you. Daubert now, your Honours, I have a feeling that I have a different version of this decision. Your Honours have the Supreme Court version or the - - -

GUMMOW J: We have both. We have the Lawyers Edition and the 509 US.

MR ODGERS: Fine, I have the Lawyers Edition too. If I can take your Honours to what the actual holding of the majority was - - -

GUMMOW J: We need the text, do we not, of the federal rule?

MR ODGERS: Yes, you need the text of the federal rule, that is true.

GUMMOW J: That is what they were construing.

MR ODGERS: It is to be found on page 480 of the decision, column A, at about point 2:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise".

Two important differences between 702 and 79 are immediately obvious. The first is that it uses the term "scientific, technical or other specialised knowledge", whereas 79 uses the term "specialised knowledge". That is important - - -

GLEESON CJ: That is taken as a genus in the section here and two particular species are mentioned.

MR ODGERS: Yes, your Honour, however it is a matter of some significance because the majority of the Supreme Court in Daubert made it clear that they were talking about scientific knowledge when they laid down the criteria which they did. Subsequent decisions in the United States have strongly suggested that those criteria do not have application to specialise, that is non-scientific specialised knowledge. By "criteria", I am talking about the specific criteria which the court referred to on page 483, not the requirement of reliability. It is clear that they thought that that should apply generally. But they laid down criteria like falsifiability, peer review in scientific journals, and similar criteria and it has been held - I have given one case in the written submissions, an unreported decision of the US Court of Appeal's 9th Circuit, US v Bighead which in fact was interestingly enough a case involving the evidence of the behaviour of sexually abused children. In that case, the majority of the US Court of Appeals held that Daubert did not apply to that evidence.

The other significant distinction from section 79 is the reference to "will assist the trier of fact to understand the evidence". That was something which the majority relied on, at least in part, in coming to their view that the evidence had to meet a standard of reliability because if it did not meet that standard, it could not assist. The conclusion, as I have said, is to be found on the right-hand side of page 480, which is essentially point 5:

To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.

And the reasoning which led to that conclusion is to be found at the bottom of that page:

The subject of an expert's testimony must be "scientific.....knowledge." The adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge" -

and this is what may help me, at least, to answer your Honour's question -

connotes more than subjective belief or unsupported speculation. The term "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.".....Of course, it would be unreasonable to conclude that the subject of scientific testimony must be "known" to a certainty; arguably, there are no certainties in science.

At the bottom of the page:

But, in order to qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation, i.e. "good grounds", based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability.

I think all I can do is put that before your Honours as one possible meaning to be ascribed to the term "specialised knowledge" in section 79.

GLEESON CJ: Are you inviting this Court to hold that that is the test for "specialised knowledge" in section 79? This is a highly controversial decision, is it not?

MR ODGERS: Yes, Daubert, your Honour?

GLEESON CJ: Yes.

MR ODGERS: Your Honour, the difficulty I have had is, as is obvious, that some meaning has to be given to the words "specialised knowledge". I have been unable to give it - to think of any plausible answer to that, other than to rely on the words of the Supreme Court, "something more than subjective belief or unsupported speculation". I would not go so far as to submit that it has to be shown to be reliable, for the reasons discussed earlier.

HAYNE J: Did the primary judge pass upon the question of specialised knowledge?

MR ODGERS: No, your Honour.

HAYNE J: Did the Court of Appeal?

MR ODGERS: In respect of one of the opinions they expressed themselves an opinion that it may not meet the test. That is in respect of the - - -

HAYNE J: Do you say that for the purposes of disposing of the appeal in the manner you contend, that we would need to pass upon this issue?

MR ODGERS: No, my first submission has always been that since this was essentially an application for an adjournment, the defendant should have been given the opportunity to call Mr McCombie as a witness and a voir dire to attempt to meet the criteria, and that all that needs to be established is that it would be open to find, on the material before this Court, that at least some of his expressions of opinion could reasonably meet the test, whatever it is.

In respect of what your Honour the Chief Justice said, yes, there is a lot of controversy about it. I have referred in the written submissions at page 10 to one article which is in the New South Wales Law Journal, which is highly critical of Daubert and I will not attempt to explain what it is saying, because, frankly, I do not really understand it.

In our submission, in page 11 of our written submissions, we submit that assuming that the evidence - at least part of, if not all- of the evidence of the witness met the test of section 79, whatever it is, our submission is that it would not have been appropriate to exclude the evidence in the exercise of discretion. We have put reasons in support of that submission in paragraph 17, which I will not read out.

In summary, then, our submission is that many of the common law authorities in this area are of very limited assistance in applying the Evidence Act provisions. The common knowledge rule is gone. The outside experience of the jury or judge test is gone. Requiring an accepted field of expertise is gone. What has to be still met though, of course, is the requirement of showing that this particular individual did have specialised knowledge in relation to any specific opinion. In our submission, that requirement was satisfied by the blanket assertion that Mr McCombie made, that he had such which was unchallenged at the trial.

Can I turn then to the last topic, your Honours, which is the possible application of section 6 of the Criminal Appeal Act?

GLEESON CJ: This submission is put upon the hypothesis that the evidence was not admissible by reason of section 409B?

MR ODGERS: Yes. If it was not admissible by reason of the opinion evidence provisions, I concede that it would not be appropriate for the Court of Criminal Appeal to say, "Notwithstanding that fact, we will take it into account". I am making that concession. Ultimately, the submission is that if the sole basis for inadmissibility is section 409B, then section 6 may still permit a court of criminal appeal to take the evidence into account.

GLEESON CJ: Is that because there is some different effect of a common law rule of exclusion of evidence as compared with - - -

MR ODGERS: No, it is because - - -

GLEESON CJ: It is because, if it is excluded by section - - -

MR ODGERS: I am not making this submission on a theoretical basis but on a practical basis, that if the real reason for the inadmissibility is the application of a rule premised on conceptions of reliability, for example, or absence of connection between expertise and opinion, there would be no proper basis on which a court of criminal appeal might, nonetheless, rely on the material for the purposes of concluding that there was a miscarriage of justice. That is what I am submitting.

GUMMOW J: What would happen then, a new trial, would it? What would happen then?

MR ODGERS: If the submission about section 6 is correct?

GUMMOW J: Well, you seek an order for a new trial? That is one of the orders you seek.

MR ODGERS: That is one of the orders. In respect of section 6, I think the order we would be seeking is that the matter be remitted to the Court of Criminal Appeal to consider the potential significance of the evidence of Mr McCombie in the court.

GLEESON CJ: But, by hypothesis, it is inadmissible.

MR ODGERS: Correct.

GLEESON CJ: You are only coming to this argument on the assumption that it is inadmissible.

MR ODGERS: Inadmissible at trial.

GLEESON CJ: Is what you have in mind ultimately a permanent stay of proceedings?

MR ODGERS: That would be one mechanism for dealing with the problem, but the alternative mechanism is to find that the conviction is unsafe.

GAUDRON J: Now, on what basis is this evidence receivable by the Court of Criminal Appeal? Is it said to be fresh evidence?

MR ODGERS: No, the submissions are spelt out at - - -

GAUDRON J: Yes, I have read them, but I did not understand them when I read them and I do not understand them now.

MR ODGERS: Our submission is that under section 6 the Court of Criminal Appeal is permitted to receive the evidence, even though it is inadmissible at trial.

GAUDRON J: All right; where does that come from in section 6?

MR ODGERS: It comes from a number of sources. There are three bases for allowing an appeal:

shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence -

that is the first basis.

GAUDRON J: Well - - -

MR ODGERS: That does not help.

GAUDRON J: No.

MR ODGERS: The second is:

or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law -

that does not help.

or that on any other ground whatsoever there was a miscarriage of justice -

We rely on the very broad power conferred by "on any other ground whatsoever there was a miscarriage of justice".

GAUDRON J: Now but do you say that the Court of Criminal Appeal can itself receive this evidence?

MR ODGERS: Yes.

GAUDRON J: On what basis? You do not put it as fresh evidence?

MR ODGERS: No, I do not.

GAUDRON J: Well, when appeals are determined they are determined in the ordinary course upon the material at the trial.

MR ODGERS: That is true.

GAUDRON J: Now I can understand an argument that the inadmissibility of evidence of this kind operates in this situation to preclude there being a fair trial of the issue, but I do not understand on what basis the Court of Criminal Appeal can, for itself, receive the evidence and analyse that and marry it up with the evidence to say whether or not it was unsafe and unsatisfactory.

MR ODGERS: Well, the first thing I would say would be that the court would have to receive it for the purposes of determining whether or not there was a fair trial.

HAYNE J: And receive it uncross-examined, uncontradicted, untested?

MR ODGERS: No.

HAYNE J: What, hold a trial on whether Mr McCombie's conclusion is right, wrong or in between? That is, hold a trial of the issue which section 409B forbids.

MR ODGERS: It does not forbid it on appeal. And, yes, I think I have to accept that in order for the Court to determine either the question of whether or not there has been a fair trial or the question of whether or not the conviction is unsafe that it would be necessary, or it may be necessary, to permit the Crown to test that evidence.

HAYNE J: Including calling the complainant and putting her through the very experience that this legislation was intended to protect her from, or is there to be but a one-sided trial of this issue?

MR ODGERS: Your Honour, at the end of the day, if justice to the accused requires that the Court of Criminal Appeal go through such a process - - -

GUMMOW J: But it is justice according to law and the law happens to include 409B.

MR ODGERS: Yes, your Honour, but 409B is specifically limited to proceedings in which the person stands charged with a prescribed sexual offence, it is not specifically applying to a situation where a person is being convicted of a prescribed sexual offence. While that is, in a sense, a relatively technical - - -

GUMMOW J: But if your proposition is correct, why is it only 409B cases that rely of this new jurisdiction - - -

MR ODGERS: Well, it is not. In theory it is not but in practice it will be because - - -

HAYNE J: That is, that on appeal any evidence ruled inadmissible might be called on appeal, tested on appeal and the conviction upheld or overturned on the basis of that finding.

MR ODGERS: Yes.

HAYNE J: The submission is untenable, is it not, Mr Odgers?

MR ODGERS: Well, your Honour, if the submission is untenable on the basis that it will cause practical problems - - -

HAYNE J: No, the submission is untenable because the obligation is to do justice according to law.

GLEESON CJ: There are some people who feel just as strongly about the hearsay rule as others feel about section 409B.

MR ODGERS: Yes, and the English Court of Appeal has allowed an appeal against conviction on the basis that the conviction is unsafe, where third party confession was inadmissible in support of the defence in a criminal trial. That was done on the basis that the evidence was received, taken into account and an appeal allowed, notwithstanding the fact that the evidence was inadmissible at trial.

GLEESON CJ: But if your argument is right, it would apply to all forms of inadmissible evidence, would it not? It would apply to all 409B cases. Any time evidence was rejected under section 409B, the next thing that would happen would be that on the criminal appeal the Court of Criminal Appeal would have the rejected evidence before it in an attempt to explain what a hardship had been suffered by somebody as a result of the operation of the law.

MR ODGERS: Your Honour, if that is the consequence of my submission, then, yes. Responding to what Justice Gummow put, it is not just a trial according to law, the accused - there must be a fair trial according to law. If the application of 409B is that the defence is prevented from adducing what may be highly probative, reliable evidence, pointing to the innocence of the accused, then there are only two options. One is that the trial should not proceed, which was the issue considered in PJE and Grills, or alternatively, an appeal court will ensure that there is no miscarriage of justice, and no miscarriage of justice by reason of the conduct of what a trial, which in the specific circumstances, has been unfair.

GLEESON CJ: I think we understand that. Can you give us a reference to that English case you mentioned?

MR ODGERS: Yes, certainly. I think it has been given to your Honours. It is the case of Beckford (1991) Crim LR 833. I think I have given to your Honours an unreported version of that. The Criminal Law Review version is a summary, but I have given your Honours the unreported version.

GLEESON CJ: Thank you.

MR ODGERS: That case was referred to by this Court in the case of Bannon v The Queen where, as your Honours would appreciate, the question was whether or not a new exception should be recognised at common law for third party confessions. I have given your Honours the decision of Bannon. There is a brief reference to the case of Beckford in the decision of the majority in Bannon. This is [1995] HCA 27; (1995) 185 CLR 1, at page 22. At the bottom of the page:

As the law stands in this country, there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or by a third party. No Australian court, at least in any reported decision, appears to have taken the approach adopted by the Court of Appeal in England in R v Beckford that if the consequences of inadmissibility are that the jury does not hear an alternative version of the events giving rise to the charge, the conviction of an accused may be unsafe and unsatisfactory and accordingly set aside. It should be noted that in Beckford the co-accused did not give evidence and the prosecution was unable to give evidence of the confession because the trial judge held that it was not given voluntarily.

GUMMOW J: Does anything attach for your interpretation of section 6 of the Criminal Appeal Act from section 23 of that Act?

MR ODGERS: Section 23 of the English Act?

GUMMOW J: No, New South Wales Criminal Appeal Act.

MR ODGERS: This is the writs of error provision.

GUMMOW J: Yes. Would any of this activity you say should be engaged in under section 6 have been engaged in under earlier procedures?

MR ODGERS: I am sorry, I do not know, your Honour.

GLEESON CJ: Yes, does that cover what you want to say about the point, Mr Odgers?

MR ODGERS: Nearly. Even though I did not agree with your Honour Justice Gaudron, in my submission, this can be approached as a fresh evidence case. The evidence was not reasonably available at trial and I have looked at all the fresh evidence cases, your Honours, in the High Court, and I cannot find anywhere an explicit statement that those principles do not apply to evidence which is inadmissible. They all talk about evidence having to be cogent, and credible, and not reasonably available at trial, but I was unable to find any statement in those cases of the proposition that the evidence must be admissible at trial.

On page 13 we refer to the very large powers conferred by the test of a miscarriage of justice. If I could just read from the decision of Davies and Cody which was cited in M v The Queen - - -

GAUDRON J: But surely that does not take you anywhere if the evidence is inadmissible.

MR ODGERS: Well, your Honour, inadmissible by what provision?

GAUDRON J: By a provision of statute law.

MR ODGERS: Which applies to a trial.

GAUDRON J: Yes.

MR ODGERS: The Evidence Act itself applies to all proceedings and that would include - - -

GAUDRON J: But how do you get to the proposition that a verdict is unsafe and unsatisfactory if the evidence upon which you rely could never have been before a jury?

MR ODGERS: Well, I do it on the basis that, at the end of the day, the provisions - the power to prevent a miscarriage of justice carries with it a power to receive inadmissible evidence - inadmissible at trial - but receivable on appeal.

GAUDRON J: So that you can determine that he was deprived of a chance of acquittal that was fairly open? Is that - or are you using it - - -

MR ODGERS: Your Honour is referring to the proviso?

GAUDRON J: Well, it is a miscarriage of justice.

MR ODGERS: Yes. If there has been a miscarriage of justice then it would be unlikely that the proviso would be applicable. I mean, I understand that these are relatively revolutionary submissions that are made but, in my - - -

GUMMOW J: Well, they are novel.

MR ODGERS: Novel, perhaps they are novel. Your Honours, we are dealing with a very discrete case where defence evidence is being excluded, notwithstanding the fact that it may be highly probative and reliable. In that extreme situation, my submission is that the courts have to acknowledge, or have to accept, that there must be a failsafe and the failsafe is either through a permanent stay to ensure that a trial which will be unfair does not proceed, or through the very broad powers conferred by section 6 in circumstances where there is no provision, statutory provision, which says this evidence is inadmissible on appeal; that the actual provision itself, 409B, is limited to the trial and the Evidence Act which does apply to an appeal does not preclude this evidence going before the Appeal Court.

GUMMOW J: What is the order you would ultimately get, if you go through all this procedure you say you can go through?

MR ODGERS: The order would ultimately be that if the appeal court, taking into account all the evidence adduced at the trial, taking into account this evidence inadmissible at trial, taking into account if so - - -

GUMMOW J: Yes, I know, what does it do?

MR ODGERS: It could enter a verdict of acquittal, on the basis that the conviction is unsafe.

GLEESON CJ: Any other possibility?

MR ODGERS: It could allow the appeal, order a new trial and then stay it, on the basis that any new trial could not be a fair trial, but, of course, that would be inconsistent with PJE. Oh, I am sorry, I have neglected one important thing. In the Court of Criminal Appeal in PJE itself, every member of the court acknowledged and assumed the existence of the very power which is being put before your Honours. It derived, of course, as your Honours are aware, from the statements of Justice Mahoney in Morgan's Case, but every member of the court endorsed this power.

GLEESON CJ: And PJE came to this Court at the same time as Grills.

MR ODGERS: Yes. Your Honours, page 3 of Justice Cole's judgment, top of the page:

The statements of principle as I have expressed them do not impinge upon the capacity of a Court of Criminal Appeal after a trial has occurred in accordance with the law, including s409B, to consider whether, nonetheless, a verdict should be quashed upon the ground that the conviction is unsafe and unsatisfactory, or that there has been a miscarriage of justice. That is because "the requirement of fairness (is) separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and a touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law". If a Court of Criminal Appeal were to conclude that, "either in the conclusion itself, or in the manner in which it has been reached", the jury in a trial conducted in accordance with s409B, were mistaken or mislead -

and that is the language of Davies and Cody, which I was going to take your Honours to -

the conviction must be quashed. Such a decision would not question the authority of the Parliament's enacting of s409B or its applicability to the trial in question; rather it would recognise as Gaudron J did in Dietrich, that a trial conducted strictly in accordance with law may nonetheless be unfair such that a miscarriage of justice may have occurred.

Similarly, Justice Grove at page 2 of his judgment, in the middle paragraph, which I will not read out. Similarly, Justice Sperling - - -

GAUDRON J: What page in Justice Sperling?

MR ODGERS: I am looking, your Honour. I am sure it is there, but I am just having trouble finding it.

GLEESON CJ: You can pick it up and mention it in reply, Mr Odgers.

MR ODGERS: Yes, thank you, your Honour. Your Honours, of course, are familiar with what Justice Mahoney said in Morgan and that seems to be the origin of this particular principle for which we are contending. In respect of the broader question of the operation of section 409B, it really is our submission at the end of the day that section 409B should not be understood to prevent the courts doing, what we submit, should be done. Section 409B is an expression of intention by the New South Wales legislature that where a trial proceeds in respect of a sexual offence proceeding, that this evidence is not to be admitted. That is all it says. It does not go on to say, and in no circumstances is such a trial to be regarded as unfair; it does not say that. Nor does it say, that in no circumstances may the trial be stayed on the basis that it will be unfair; nor does it say that in no circumstances may an appeal court act to remedy what may be a miscarriage of justice. Now, those are matters that might be implied, but, in my submission, should not be implied. There is no reason to think that the New South Wales Parliament turned their minds to any of these matters. Their concern was to ensure that at a trial there was no such cross-examination. That was their concern.

GLEESON CJ: Mr Odgers, all exclusionary rules of evidence, by hypothesis, exclude evidence that is relevant, do they not?

MR ODGERS: Yes, your Honour.

GLEESON CJ: If the evidence were irrelevant you would not get to the exclusionary rule.

MR ODGERS: Yes, your Honour.

GLEESON CJ: Well, then, in any case in which evidence has been properly excluded, by hypothesis, the jury do not have in front of them some relevant evidence.

MR ODGERS: Yes, your Honour. That does not mean - - -

GAUDRON J: Well, that - your assent, I think may have been rather precipitous. I am sorry. Some exclusionary rules are based on the probative value - may be based on probative value rather than relevance.

GLEESON CJ: Let me put it this way, exclusionary rules commonly apply to exclude relevant evidence.

MR ODGERS: Your Honour, under the Evidence Act if evidence is not relevant it is not admissible, therefore, by definition, all exclusionary rules exclude relevant evidence.

GLEESON CJ: So, it is common place for a Court of Criminal Appeal to have in front of it a case in which there has been an exclusion, a proper exclusion of relevant evidence?

MR ODGERS: Yes. That does not mean that in any but a most exceptional case would it be appropriate to either stay a trial in those circumstances or to conclude that there has been a miscarriage of justice. That is why I made the concession about the opinion evidence in this case. Because the rationale of the rules is essentially to ensure, generally, that unreliable evidence is excluded or evidence that it is more prejudicial than probative or some variation of those concepts, in those circumstances it would be inconceivable that there would be either a - appropriate to have a stay or conclude there is a miscarriage of justice. The International Covenant on Civil and Political Rights talks about in article 14, clause 3, paragraph E the right of a defendant to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

Now, that principle, we say, is not complied with by 409B. It is complied with with virtually all the rules of evidence in the Evidence Act because the rules apply equally, but the effect of section 409B is to say, in respect of the most important prosecution witness, the defence will be prevented from adducing what may be very significant evidence tending to show the innocence of the accused. Of course, on the face of it the legislation applies equally to both the prosecution and defence but the actual real world operation of 409B is to make the task of the defence that much more difficult and we would say that it would be in conflict with that right reflected in article 14 and only in that kind of extreme case would it ever be conceivable that a stay or, alternatively, an appeal would be allowed on this basis. Your Honours, unless I can assist you further, those are our submissions.

GLEESON CJ: Thank you, Mr Odgers. Yes, Mr Hosking.

MR HOSKING: May it please your Honours, we have made some submissions in writing about 409B and have made particular submissions about each of the matters to which your Honours have been addressed by our learned friends. Unless your Honours have any questions of us in relation to 409B, we would sooner go directly to the question of "specialised knowledge" under section 79. In that context, may we deal firstly with a question asked of our learned friends by your Honour Justice Hayne, that is to say, is it necessary in the present case for your Honours to deal with specialised knowledge and what that means under section 79 to determine this appeal.

Your Honours will appreciate, I think, that we have taken up, so to speak, the question of specialised knowledge and the question of whether Mr McCombie's written report as supplemented by the transcript of his committal evidence, was an opinion within the meaning of section 79 at all as a fall-back position, if your Honours like, and picked up from some things that the President of the Court of Appeal had to say about the question which appears at page 228 of the appeal book. May I take your Honours to it quickly, if your Honours please. Your Honours can read it more quickly than I can read it out aloud. The passage to which we refer commences at line 10 and ends at line 45.

HAYNE J: What is the particular aspect of the complainant's situation to which his Honour is there referring in line 15?

MR HOSKING: It appears to refer back, your Honour, to what his Honour says at line 5:

But I doubt that the complainant's attitude of resentment at "parental" discipline can be so characterised.

That is as I understand it. Your Honours, we agree with aspects of what has been put by our learned friends in relation to some aspects of section 79 and what "specialised knowledge" within the meaning of section 79 means. We do not agree with all of them. But, your Honours, in an endeavour to give some meaning to the meaning of those words within section 79, we put these submissions, and not all of what we are about to submit your Honours will find in our written submissions because we have given them further point.

MR HOSKING: Just before I do that, may I just make one point with reference to our written submissions so that your Honours are not misled in any way. May I take your Honours to something that we have said on page 4 of our written submissions, under the heading "Conditions of opinion admissibility under section 79", and we have submitted there that there appear to be four conditions of admissibility under section 79. We would amend what we have said there in two ways. Firstly, in relation to what we proffer as condition 1, we submit that condition 1 would read better as follows: the person proffering the opinion must have in fact and demonstrate specialised knowledge.

GAUDRON J: That is a gloss on the section, is it not?

MR HOSKING: It reflects, your Honour, the common law decisions which we submit must still apply if this section is to be workable at all, for a reason we will explain in a moment.

Your Honours, in relation to our proposed condition 2, that "specialised knowledge" must be in a recognised field of expertise, we delate that. We ask your Honours to notionally delate it, because, it seems to us that the inevitability is that in the light of the ALRC's disavower, if your Honours like, of "recognised field of expertise" as a concept as the common law knew it, and the fact that those words are not included in the section as they might have been, means that that precise condition perhaps no longer applies under section 79 of the Evidence Act. However, as we will put in a moment, we do say that there must be something very similar to that, some similar condition, for the section to be workable at all. May we come to that in just a moment.

Your Honours, we submit that specialised knowledge within section 79 firstly must mean something more than, as they put it in the United States in Daubert, "subjective belief or unsupported speculation", just as a matter of ordinary language, quite apart from the context in which the United States court was construing the phrase, and we accept that they were construing a phrase, perhaps as part of a genus, as your Honour the Chief Justice observed. Your Honours will note that the knowledge must come from "training, study or experience". It must be specialised and that, we suggest, probably means that it is not in common possession; not a matter of common knowledge, we submit.

It may be, your Honours, that the true meaning of "knowledge" within the phrase "specialised knowledge" is that it depends upon whether the knowledge and the specialised knowledge arises, on the one hand from training and or study, and on the other hand, from experience. May we develop that a little further?

GUMMOW J: Is there anything in these provisions dealing with common or general knowledge; judicial notice of matters of common or general knowledge, as distinct from specialised knowledge?

MR HOSKING: In the dictionary, your Honour?

GUMMOW J: Yes.

MR HOSKING: I am sorry; I just did not hear the beginning of your Honour's question.

GUMMOW J: Does this Act say anything about common or general knowledge?

MR HOSKING: I do not believe so.

GUMMOW J: As to which one ordidnarily takes account.

MR HOSKING: I do not believe it does, your Honour. I am sorry, I am told it does.

GUMMOW J: In other words, in juxtaposition to specialised knowledge, if you see what I mean.

MR HOSKING: Yes, I see the point that your Honour makes. I am indebted to my learned friend for pointing out that at section 144(1) of the Evidence Act, the Act speaks of "common knowledge".

GUMMOW J: Yes, thank you.

MR HOSKING: We submit that our proposition in relation to "knowledge" having a different meaning according as to whether it stems from training and/or study on the one hand, or experience on the other, is supported by the ordinary meaning - I am sorry, it is supported by the fact that there is more than one meaning to the word "knowledge" in the first place. May we hand up to your Honours five copies of the page from the Shorter Oxford Dictionary. Your Honours will see that the definition in the third column on that page, at about point 3 on the page, item 1:

The fact of knowing a thing, state, etc., or person -

And 4:

Acquaintance with a fact; state of being aware or informed; consciousness -

is one meaning of "knowledge" - at least in this dictionary - to be compared to the different meaning of which 6, 8, 9 and 10 - that is to say at 6:

Theoretical or practical understanding of an art, science, language, etc -

Then, 9:

The sum of what is known.....10. A branch of learning; a science; an art.

Your Honours, as we have said, "recognised field of expertise" seems to have been deliberately excluded from the terms of section 79 and, indeed, Part 3.3 of the Evidence Act entirely. As our learned friend adverted to in the Law Reform Commission material at page 412 of volume 1 of the report No 26 - this is at page 412, your Honours, under the heading "Field of Expertise", in the second paragraph under that heading on page 412 it is said this:

It is proposed, therefore, not to introduce the "field of expertise" test. There will be available the general discretion to exclude evidence when it might be more prejudicial than probative, or tend to mislead or confuse the tribunal of fact. This could be used to exclude evidence that has not sufficient emerged from the experimental to the demonstrable.

It appears to us that what was being spoken of there was the exclusionary provision in section 135 of the Evidence Act. If I may take your Honours to it. Section 135, being the first section under Part 3.11, "Discretions to exclude evidence":

The court may refuse to admit evidence if its probative value is substantially outweighted by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or -

and, perhaps, not relevantly here -

(c) cause or result in undue waste of time.

Your Honours, the short point is this, that if there is no restriction to admissibility of this evidence under section 79, of the kind that there use to be at common law, and if judges are driven to - if that is the correct expression - excluding this evidence under 135, if appropriate, not only are there no tests specified in section 79 or in 135, or in any other section, to determine how that discretion ought to be exercised. The combination of those provisions has the effect of, in effect, reversing the onus of proof in relation to expert evidence because it will then become a question of, if "specialised knowledge" is to have a very broad meaning, it will be the party against whom the evidence - the onus will fall upon the party against whom the evidence is tendered, to have it excluded under section 135 and to demonstrate why that ought to be so which seems, we submit, a very curious position to put such a party in.

We submit that on a true construction of section 79, to avoid the kinds of dangers that were adverted to in, for example, the Reg v C, which is the South Australian case, if I may give your Honours the reference to it quickly, Reg v C [1993] SASC 4095; (1993) 60 SASR 467, where Chief Justice King said at 474 - this is the second full paragraph on page 474, a reference to Runjanjic, an earlier South Australian decision. It is emphasised in that case:

As emphasised in that case, courts must exercise great caution in expanding the area of expert evidence. That caution is necessary in order to safeguard the integrity of the trial process and to protect the capacity of the courts and juries to discharge their fact-finding functions from being overwhelmed by a mass of expert evidence on topics which could be judged without the assistance of such evidence.

GLEESON CJ: Where are you reading from?

MR HOSKING: I am sorry, your Honour, it is page 474 of Chief Justice King's judgment in C.

GLEESON CJ: Thank you.

MR HOSKING: To which we would add, and also - and there is the allied danger of what your Honour the Chief Justice described as junk science, junk opinion evidence.

GLEESON CJ: Well, if identifying the real culprit when a crime has been committed is part of an area of specialised knowledge it could make the conduct of criminal trials, for the prosecution, very efficient.

MR HOSKING: Yes. Yes, in the sense that the jury would just be - the jury's role would be a formality, but it is not.

GLEESON CJ: Well, the Crown could rely on opinion evidence.

MR HOSKING: Yes. If the positions were reversed, yes. It is an extraordinarily wide proposition, your Honour. We are not able to fill in the gap, as it were, in section 79 which we say obviously exists in words because there are no words there, but until - we say with respect, until somebody suggests a better phrase, one phrase that might be useful is the phrase used by the Court of Criminal Appeal, of which your Honour the Chief Justice was a member, in the case of Reg v F 83 A Crim R 502 to which we have made reference in our written submissions at page 6, where the Court of Criminal Appeal there, including your Honour the Chief Justice, spoke twice of scientifically rigorous analysis in terms of admissibility of expert or proffered expert opinion.

GLEESON CJ: What page?

MR HOSKING: I am sorry, your Honour, there are two pages. There are two references to "scientifically rigorous analysis" which your Honours will find at 508 and 509. Your Honours will see towards the top of 508 a reference at about point 3:

Fifthly, the term "syndrome" is one that is not always associated with scientifically rigorous analysis.

"Scientifically rigorous analysis" appears again on the next page, 509, again in the context of syndrome at about point 7.

GLEESON CJ: This was an expert witness who said that the fact that a complainant kept telling inconsistent stories about the matter was sure evidence that she had been abused.

MR HOSKING: Which, I think, was described as a syndrome.

GLEESON CJ: Yes. It was an accommodation syndrome. If the complaint was consistent, that supported the reliability of her evidence, but if the complaint was inconsistent, that even more strongly supported it.

MR HOSKING: Your Honours, whilst there is not the case law on expert evidence, or opinion evidence, in Australia that there is in other jurisdictions, the United States in particular, Australia is not without authorities in relation to the subject of opinion evidence and the cases at common law have consistently demanded a number of things of opinion evidence for admissibility. Your Honours, the afternoon is getting late but we have set out a number of what we say are pertinent passages in that respect, a number from this Court, at pages 4 and 5 of our submissions.

We submit, your Honours, that having regard to the scheme of things under sections 79, 80 and 135, that it would be an extraordinary thing if the law of evidence has got to the position where, in effect, most of that authority is simply to be swept away because of the apparent breadth of the words of section 79. We submit that, as a matter of workability, to employ a phrase, it simply cannot be so that the floodgates have not opened to the extent where all the old authorities simply must be jettisoned simply because there is a new description of opinion evidence, and in very broad terms.

Your Honours, we have set out in our submissions why it is that we say, as a matter fact in this particular case, on the evidence that Judge Kirkham had before him, Mr McCombie's evidence did not fall within section 79 as being an opinion at all; and lest your Honours misunderstand our submissions, we do not submit that Mr McCombie may not have had, in fact, specialised knowledge within the meaning of section 79. He may well have done so. A psychologist may, perhaps, be able to say some of the things, proffer some of the opinions that Mr McCombie proffered.

But our primary submission is twofold. Firstly, it is this: that if Mr McCombie did, in fact, have the specialised knowledge demanded by section 79, that he did not demonstrate that he had it, either by training or study, on the one hand, in the sense that he did not refer to any scientific materials, to employ a broad term, or if his specialised knowledge came from experience, we submit that one looks in vain to Mr McCombie's report, whether supplemented by his committal evidence or not, for evidence of the kind, "I have interviewed 500 children who have been sexually abused. I have noted that in 498 cases they exhibited particularly behaviour or particular symptoms." There is nothing of that kind in Mr McCombie's report at all.

So that, we submit that if his Honour was obliged to admit this report, apart from the 409 question, there had to be material of that kind in the report. The onus of demonstrating that scientific knowledge was on the party proffering Mr McCombie's report. If it was to be put on the basis of training or study, there is almost nothing in the report, or as supplemented by the committal evidence, to suggest that he has this particular knowledge, apart from the fact that he has qualifications as a psychologist.

GLEESON CJ: Mr Hosking, nobody doubts that psychology is a field of expertise, or that psychologists may form and express admissible expert opinions on particular matters. The usual problem that arises in relation to expert evidence does not arise because somebody calls an astrologer or a phrenologist and tries to give evidence of something that is so obviously outside a recognised field of expertise, although that may happen from time to time. Nine times out of ten, as in the present case, I would have thought, the problem is one of confining the opinion to the legitimate area of expertise of the person who expresses the opinion.

MR ODGERS: Yes.

GLEESON CJ: So the problem that arose in the present case was not whether Mr McCombie was, as it were, capable of giving an expert opinion on something. I have no doubt he was. The question that has to be addressed is whether the opinion, for which the defence wanted to call him, was one that he was able to give as an expert.

MR HOSKING: Well then, may I go to the second part of our submissions, in that respect, your Honours, and say for the reasons that we have set out in some detail commencing at page 7 under the subheading "McCombie Conclusions" down to and including at the top of page 10, that the opinions that Mr McCombie expressed, for the reasons we have indicated, were, as his Honour Judge Kirkham said, just simply conjecture, and inadmissible for that reason. That is the primary submission we make in relation to these matters.

Your Honours, may I move briefly to section 6 of the Criminal Appeal Act. Our learned friends adopt what we submit is a very broad construction of section 409B, which culminates in the proposition that the evidence under section 409B may be forbidden at trial, but it does not forbid it on appeal. We take issue with that proposition. We submit that section 409B is not as narrow as that and may we direct your Honours' attention to section 409B(2), which says that:

In prescribed sexual offence proceedings, evidence relating to the sexual reputation of the complainant is inadmissible.

It would be a remarkable construction, we submit, of subsection (2) if the effect was that an appeal to the Court of Criminal Appeal was to be regarded as materially different from proceedings at first instance because, realistically, an appeal to the Court of Criminal Appeal is only an extension of the proceedings at first instance. Our learned friends do not seem to us to have dealt with the question of what happens after the appeal goes before the Court of Criminal Appeal and the Court of Criminal Appeal says, "Yes, all right, well we agree that because the evidence was inadmissible that in some global fashion the trial was unfair or that for some other reason there was a miscarriage of justice", and then orders a new trial, because, in those circumstances, as it appears to us, then the whole process will be repeated unless the answer is, as put against us, the true remedy in those circumstances is a permanent stay of proceedings, but a stay presumably upon the basis that for the Crown to present a fresh indictment would result in an unfair trial.

Then one comes the full circle to what this Court has already said in Grills and PJE, that a trial will not be unfair if Parliament has deliberately enacted a section like this, involving the proposition that it is a judgment of Parliament that the trial will not be unfair. We take issue with the section 6 proposition for that additional reason, may it please your Honours. They are our submissions. May it please the Court.

GLEESON CJ: Thank you, Mr Hosking. Yes, Mr Odgers.

MR ODGERS: Thank you, your Honours. Justice Sperling in PJE, the unreported decision of the New South Wales Court of Criminal Appeal, dealt with this matter on the basis that the Crown made the submission to him that:

The accused's proper avenue of complaint lies in an appeal on the "unsafe and unsatisfactory" ground if convicted or on the ground of a miscarriage of justice.

That is the top of page 4. So, the Crown, in PJE, put the submission to the Court of Criminal Appeal that the remedy was an appeal.

GUMMOW J: Well, they are not saying it now, so, so what?

MR ODGERS: I appreciate that, your Honour. The reason I am bringing it to your Court's attention is I was asked to point out what Justice Sperling said about it, and it appears that he proceeded on the assumption that that was the remedy.

There is a reference to the Court of Criminal Appeal at appeal book 228, where there was a doubt expressed as to whether or not Mr McCombie had specialised knowledge in respect of some particular aspect of the complainant's situation. That was a reference to the opinion of Mr McCombie that the complainant made false allegations by reason of her resentment of parental discipline. That was on the previous page. The Court of Criminal Appeal expressed doubts as to whether or not Mr McCombie had specialised knowledge on that issue, and that is the only issue in which they express doubts about specialised knowledge.

Your Honours, I said to you, somewhat misleadingly, that the final report of the Law Reform Commission does not really add anything. I was wrong. Paragraph 151 of Law Reform Commission Report No 38. If I can take your Honours to that. Firstly:

Expert opinion. The Interim Bill enabled an expert to give opinion evidence based `wholly or partly' on the expert's knowledge, skill, experience or training. The point was raised that this could enable an expert to give non-expert opinion evidence. It is recommended that the words `wholly or party' be replaced by `wholly or substantially'.

Then, more importantly:

Definition of `expert'. An expert was defined in the interim proposals as a person who `has special knowledge, skill, experience or training'. This is too broad. It is open, for example, to the interpretation that someone who knows a person well is able to give evidence of that person's character as an `expert' because of the `special knowledge' possessed. The problem is to find a formula that is more limiting but at the same time will not be used to re-introduce the common knowledge limitation. The balance can be struck by using the phrase `has specialised knowledge based on the person's training, study or experience.'.

I am not sure that this is enormously helpful to your Honours in working out what that term means, but it does suggest that care should be taken in placing too much importance on the word "specialised". Lastly, the "common knowledge" point again. The Law Reform Commission, in order to ensure that no argument could be advanced to bring back the common law, as my learned friend is suggesting, thought it necessary to include a provision which is now found in section 80, that evidence of opinion is not admissible by reason only that it relates to a matter of common knowledge.

My friend referred to C's Case and submitted that the Court should adopt the analysis in that case. Both of the tests that were applied in C by the South Australian Full Court have been expressly rejected by the Law Reform Commission. The first test that was applied by Chief Justice King is to be found at page 473 when he talked about:

whether the topic is a fit subject of expert evidence, that it is proved -

this is the bottom of the page -

that there is a scientifically accepted body of knowledge concerning the behaviour of child sexual abuse victims.

The Law Reform Commission expressly considered that requiring "scientifically accepted body of knowledge" should not be required under the Evidence Act. The other aspect of Chief Justice King's judgment is to be found on page 474 where he held that, at the top of the page, there was:

a question whether the subject matter of the proposed evidence is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries.

The Law Reform Commission expressly considered that because a matter is one of ordinary experience or common knowledge, should not be a basis for preventing expert evidence on it and while it must be specialised, it does not have to be so special and so outside ordinary experience, which is the test adopted by Chief Justice King. Your Honour in F, your Honour the Chief Justice, as one of the members of the court in F, did use language of "scientifically rigorous". In my submission, that is not required under the Evidence Act. Firstly, the word "scientific" is not used, but "specialised" and, as I have indicated, the Supreme Court emphasised the importance of the distinction between those two words, and that has been reasserted in the case of Bighead in the US Court of Appeals. Rigour suggests something like, with respect, one of the tests in Daubert which was said to be applicable to scientific knowledge but, in our submission, again, does not apply to the type of material in question today.

GLEESON CJ: Daubert, I thought, was not about scientific knowledge but abut scientific process.

MR HOSKING: Well, the words in rule 702 were "scientific knowledge".

GLEESON CJ: Yes, but I thought they took some pains to explain that "science", they thought, was a reference to a mode of thought.

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

GLEESON CJ: Which is why they ended up with this concept of falsifiability that has caused so many people to question Daubert.

MR HOSKING: Yes. Your Honour, I am just querying the use of the terminology "scientific rigour" as applicable to section 79.

GLEESON CJ: Correct me if I am wrong, but as I understand it one of the criticisms that are made about Daubert is that if you apply it that would result in the exclusion of a whole lot of evidence that everybody accepts as opinion evidence.

MR HOSKING: Well, I was not aware that that was the criticism. Certainly, there have been articles written suggesting that the implications of Daubert would be that a lot of material that is presently allowed would have to be excluded because, for example, it could not meet those tests articulated in Daubert. Your Honours, in F, can I just make this point, the evidence was excluded but the reasons are expressed at page 509 of the judgment. The first was that it was not shown that the person was properly qualified, it was a specialist paediatrician giving evidence about child sexual abuse and the court said, at point 5:

Dr Packer was not shown to be properly qualified to give evidence about matters within the expertise of a psychiatrist or a psychologist.

Secondly, there was the requirement of scientific rigour which I have already dealt with and then there was the proposition advanced that:

there is the apparently non-diagnostic nature of a syndrome (as described by Dr Packer), and the difficulty of relating it in a useful way to the facts of the instant case.

Well, in our submission, Mr McCombie did relate the general knowledge and experience about the behaviour of children who have been sexually abused to the individual complainant in this case.

GLEESON CJ: What actually happened in F was that a paediatrician who had been called to give evidence for a quite difference purpose was subject to some opportunistic questioning while she was in the witness box and she ventured an opinion, which was rather drawn out of her, on the basis of some reading she had been doing outside her own field.

MR ODGERS: Yes.

GLEESON CJ: And out it all came. The accommodation syndrome, and explanations in books as to why child sexual complainants might give inconsistent versions of the fact.

MR ODGERS: In my submission, there would be no question that under the Evidence Act it would also be inadmissible. Now, that might be the result of section 79, but it certainly would be the proper operation of section 137. Your Honours, notwithstanding my friend's submissions to you, it is my submission that it is clearly the intention of the Parliament of New South Wales that there should be a more liberal approach to expert evidence. This legislation reflects a view that the courts have perhaps been too resistant to expert evidence and that, assuming preconditions are met, as articulated in section 79, that the burden should be on the party seeking to have the evidence excluded to demonstrate to the court that the value of the evidence is outweighed by various factors and, in my submission, that is the clear intention of this legislation and, of course, the legislation is drafted in a way which makes it harder to get this evidence in against a defendant in a criminal trial than for a defendant in a criminal trial, because of the formulation of the relevant discretions. Those are my submissions.

GLEESON CJ: Thank you, Mr Odgers. We will reserve our decision in this matter.

AT 4.19 PM THE MATTER WAS ADJOURNED