Adam v The Queen

[2001] HCATrans 77

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S139 of 2000

B e t w e e n -

GILBERT ADAM

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GAUDRON J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 30 MARCH 2001, AT 10.16 AM

(Continued from 23/11/00)

Copyright in the High Court of Australia

GLEESON CJ:   Mr Odgers and Mr Blackmore, I understand that the parties have been told that Justice McHugh is not able to be present today and that the parties are agreeable to our continuing with the argument and to his participating in the decision by reading the transcript of today’s proceedings.

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

GLEESON CJ:   Thank you.  Yes, Mr Odgers.

MR ODGERS:   Thank you, your Honour.  Your Honours, an amended chronology has been filed by the appellant, which is entitled “Appellant’s Amended Chronology”.  However, subsequently to that the respondent, I understand, has filed another document which is entitled “Amended Chronology” and we are content to rely on that latter document.

KIRBY J:   How do we know one from the other?

MR ODGERS:   Well, the Crown’s one is not called “Appellant’s Amended Chronology”.

KIRBY J:   But the one I have is “Further Amended Chronology”.

MR ODGERS:   I am sorry, I apologise, your Honour, I have got a different document.  Yes it is called “Further Amended Chronology”.

KIRBY J:   So that is the one we are to use.

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   Well, I am told I do not have it.

KIRBY J:   Why have you left the Chief Justice off the list?

MR ODGERS:   You will have to ask the Crown that, your Honour.

GLEESON CJ:   Has it an identifying mark on it?  Has it a reference to the solicitor, for example?

MR BLACKMORE:   I understand it was handed up this morning before Court, your Honour.

GAUDRON J:   Mine says “10”.

GLEESON CJ:   I am going to show you something and ask you whether that is the one that we should have?

MR BLACKMORE:   Yes.

GLEESON CJ:   Thank you.

MR ODGERS:   Your Honours will see from that document that it provides much of the information which some members of the Court requested on the last time that this matter was argued and it includes references and where appropriate I will draw your Honours’ attention to that material.

KIRBY J:   Would you remind us where we had got ‑ ‑ ‑

MR ODGERS:   Yes, your Honour, I will and, indeed, I would ask your Honours’ indulgence to allow me to spend a short time just going over one or two matters that we had dealt with on the last occasion.  Before I do that, perhaps, there was particular matter which your Honour Justice Kirby was concerned about and perhaps I can deal with that quickly now.  That was the question of evidence of David Carty’s blood on Thaier Sako.  The Crown has obtained transcript relating to all of that but perhaps if I just simply summarise that evidence and if it becomes necessary your Honours can receive the transcripts.

There was evidence that a spot of blood, likely to be Carty’s blood, was on the back of Thaier Sako’s shirt near the bottom hem and Dr Goetz testified that it was a “light smear approximately a couple of centimetres long”, and he was not able to say whether it was a splatter or a droplet.

There was also a very small amount of blood on the back, left jeans leg of Thaier Sako, which may have been from David Carty.  Just in reference to that evidence, at the trial the Crown case was that the blood on the back of Sako’s shirt got there as he was walking away from the scene as David Carty was stabbed.  The submission we make here is that it is at least equally consistent, and we would say more consistent, with later transference, particularly given the evidence of the witnesses that I took your Honours to on the last occasion.  Your Honours will recall that the witnesses I took you to tended to show that Thaier Sako was some distance away from David Carty at the time that Carty was stabbed.

We say that the blood on Sako was certainly consistent with transference and to support that, I just make a number of observations.  There is no dispute that there was a very great deal of blood lost by David Carty during this incident.  The evidence of his injuries is summarised in the Court of Criminal Appeal judgment at appeal book 1629, and I will not take your Honours to that.  It is not in dispute, again, that there were a large number of people who attacked David Carty.  I think the evidence was fairly clearly that the number was at least in double figures, and I will not take your Honours to the references to that.

Lastly, there was, again, undisputed evidence that some of the people involved in attacking David Carty subsequently came into close proximity to Thaier Sako, for example, Thamir Sako, his brother, who has subsequently been convicted of maliciously inflicting grievous bodily harm on David Carty and had David Carty’s blood all over him.  It is not disputed that after that he was cradling his brother’s head in his lap.  We say, clearly, obvious danger of transference, possibility of transference.  That is all I would say about that question.

Your Honours, I made some concessions either explicit or implicit on the last occasion which I wish to retract.  Your Honours recall the first argument advanced by the appellant was that the evidence of Thaier Sako as to what he had said to the police was not relevant for a hearsay use.  That was the first argument we advanced.

Now, I implicitly conceded in relation to a question from the Chief Justice that the finding of the trial judge that the evidence had “very significant probative value” and, therefore, necessarily, his finding that it was relevant was a finding of fact.

I implicitly conceded that it was necessary for the appellant to establish that that finding was irrational.  The submission we make is that the question whether or not evidence is relevant as defined in section 55 of the Evidence Act is really a question of mixed law and logic and experience.  More importantly, it is a question upon which an appeal court is in just as good a position to determine as the trial judge.     It is our submission that if this Court were to conclude that in its view the evidence was not relevant for a hearsay use, we say that is a proper basis to allow the appeal.

Your Honours recall that numerous arguments were advanced as to why it was not relevant for hearsay use; I will not repeat those here save for one matter.

GLEESON CJ:   By the expression “not relevant for a hearsay use”, do you mean if used for a hearsay purpose, not relevant?

MR ODGERS:   Yes.  If used for the purpose of proving the truth of the facts asserted in the out-of-court representation, not relevant.

GLEESON CJ:   The concept of relevant itself being defined in the Act.

MR ODGERS:   Yes, your Honour.  Section 55 does not talk about use or purpose; it talks simply about does the evidence or could it affect “the probability of the existence of a fact in issue.”  In order to determine relevance, it is often necessary to consider how it is sought to be used and, of course, in this case there are two alternative uses.  One is a use to discredit – these are the out-of-court representations - Thaier Sako’s in‑court testimony, and it would be relevant for that use where he was a witness.  Another use is what I call for shorthand purposes the hearsay use.

Your Honours recall that I took you through the arguments as to why we submitted the out-of-court statements were not irrelevant for hearsay use.  It was not contemporaneous, it was not against interest, there was a danger of concoction.  I also mentioned a danger of distortion, and I referred to the fact that he was badly injured at the time, obviously, and also I mentioned that there was evidence that he was drunk.  References to that can be found at appeal book 476 and 995. 

The next concession I wish to retract was that it was conceded in response to a question again from the Chief Justice that evidence of what Thaier Sako said to the police would be relevant for hearsay use if it was consistent with his own statements on other occasions.  It was wrong to concede that in context.  Certainly, it would be relevant for a credibility use, because whether an out-of-court statement is consistent or inconsistent with testimony is relevant as to the credibility of the in-court testimony.  But it would not, we say, satisfy relevance for a hearsay use.  Whether or not it is consistent or inconsistent with in-court testimony is not, in fact, relevant to that issue. 

I might have appeared to concede a proposition advanced by Justice Hayne that evidence of what Thaier Sako said to the police would be relevant if it contradicted evidence given by others.  The submission I make here is that whether the out-of-court statements were consistent with, or inconsistent with, evidence given by other witnesses, has no bearing on whether it meets the test of relevance for a hearsay use.  The critical issue in respect of that question is whether there is anything in the circumstances or the contents of the statement from which one could conclude that it was reliable, and that consistency or inconsistency with evidence given by others does not bear on that issue. 

KIRBY J:   Why not if there is a thread of reliability with other evidence?  Why would one not say it is consistent?

MR ODGERS:   In my submission, when you look at evidence of an out‑of‑court statement, you are looking for anything which tends to establish the reliability of the assertion and, in my submission, you should not take into account – I know I am not really answering the question – anything other than the contents of it and the circumstances in which it was made.

KIRBY J:   But if it fits together in a jigsaw of testimony which gives it credibility in its context, why is that not then relevant?

MR ODGERS:   The difficulty is that, in a sense, it fitted with the Crown case but, in my submission, that cannot be enough to say, “Well, therefore, it’s reliable”.

KIRBY J:   Is not this an over‑nice distinction.  I mean, these trials have to be conducted in great drama, in the midst of a lot of emotional pressure and it is a very ultrarefined view you are pressing.  I think an ordinary person would say if it fits in with other testimony, it tends to be reliable or it tends to its reliability.

MR ODGERS:   Well, my submission is to the contrary.

KIRBY J:   I think your first concession might have been more accurate.

HAYNE J:   There are two steps in the process of reasoning that you are presently dealing with, are there not?  First, that relevance, in particular the understanding of what is meant by “could rationally affect” requires some assessment of reliability of the out‑of‑court statement.  That is step one, is it not?

MR ODGERS:   Yes, your Honour.

HAYNE J:   Step two involves understanding what you mean by “assessment of reliability”.  What is the standard that you would thus import into section 55, could be reliable, probably is reliable, certainly is reliable?  What standard are you importing?

MR ODGERS:   I think, could be regarded by a reasonable jury as being accurate.

HAYNE J:   Thus the question of relevance, the very first question that must be confronted in considering whether evidence is to be received or not, requires the trial judge to form an assessment of the impression that the witness might make on the jury.

MR ODGERS:   No, your Honour, because that was the point I made on the last occasion.  It has to be assumed that, and the words of section 55 talk about  - require a judge, in determining relevance, to assume something - I will just get the precise words to - “if it were accepted”, that if Thaier Sako’s testimony that he said the words, “A, B, C”, as your Honour said on the last occasion, were accepted.  So, there is no credibility judgment made by the judge about that evidence, whether or not one should accept Thaier Sako’s testimony that he said the words.

It is in respect of the hearsay use of the words, that is, can the fact that he said those words to the police be used to establish the truth of what was said.  In respect of that, we say that no assumption is to be made.  It is not a case of looking at making judgments about credibility in the sense of what a witness says in the witness box because it is an out-of-court statement, nobody has that.  One just simply has to say, and we say, you have to look at the circumstances in which it was made and its contents, to make the determination.

That is all I was proposing to say about that relevance question.  Your Honours will recall that the second limb of the argument was that even if the evidence was relevant for a hearsay use, we submitted it was not admissible for a credibility use and the reason we submitted that was because we submitted that it did not meet the test in 103 of the Evidence Act, which requires that evidence relevant for a credibility use have “substantial probative value”.

You will recall that there was a question as to what that meant, and I will not go over that.  Our submission was that it meant simply that it had to have a substantial effect on the probabilities of the existence of a fact in issue; it had to have a substantial effect on the probabilities that the appellant who was involved in the killing of David Carty.  Your Honours will recall that the argument we advanced ‑ ‑ ‑

GLEESON CJ:   A fact in issue or a fact relevant to a fact in issue?

MR ODGERS:   The evidence has to be relevant to a fact in issue.  It may be indirectly relevant to a fact in issue.  Evidence relevant to the credibility of a witness will be indirectly relevant to a fact in issue, because it will affect the weight you give to the witness’ testimony, which is about a fact in issue.  So that in this context, when you have evidence of a prior inconsistent statement, the proper approach we say is – well, the relevance is via credibility; it tends to diminish the credibility of the witness and the witness’ testimony.  The ultimate question under 103 is not, “Does it have a substantial effect on the witness’ credibility?”, but, rather, “Does it have a substantial effect on the probability of the existence of a fact in issue via discrediting the witness?”  That was where the argument was centred as to what section 103 meant and it was made clearer by postulating the scenario of the unimportant witness or, we say in this case, the neutral witness, who really gives quite unimportant testimony.  It does not matter how discrediting other evidence is, evidence he has got 37 perjury convictions ‑ ‑ ‑

GLEESON CJ:   Well, that, I think, is what we were engaged in discussing at about the time we came to a conclusion on the last occasion, that is, whether or not the account that Thaier Sako was giving was neutral.

MR ODGERS:   Correct, your Honour, yes.  A matter in which I recall that I made a submission which was questioned by your Honour Justice Gaudron was whether or not the appellant could rely on the testimony given in what I will call the voir dire by Thaier Sako.  The difficulty in this case is that he testified on two occasions:  he testified in the voir dire; he testified in front of the jury.  My submissions relied primarily on his voir dire testimony and I maintain the submission that it was appropriate to so rely, because, in my submission, firstly, the trial judge gave his, what I will call, advanced ruling on the basis of that evidence, but also because, in my submission, inevitably, when he gave the actual ruling at 1107 in the appeal book ‑ ‑ ‑

GLEESON CJ:   You mean when he made it?

MR ODGERS:   When he granted leave.

GLEESON CJ:   When he made the order granting leave?

MR ODGERS:   Made the order granting leave, in my submission, inevitably, and quite properly, he took into account the evidence that he had heard on the voir dire as bearing on the question of whether or not to grant leave.  So, putting the proposition slightly differently, we say that the testimony which Thaier Sako gave in front of the jury which preceded the order was, and should have been, understood in the context of what he had said in the voir dire.

GAUDRON J:   Understood by whom?

MR ODGERS:   The trial judge.  This may not be a major issue, but before I explain why it is not, in our submission, a major issue, the major difference between his voir dire testimony and his in‑court testimony was on the question of whether he had seen anybody around David Carty in the moments leading up to himself getting stabbed.  Your Honours will recall that in his testimony in front of the jury he said, no, he did not see anyone.  The submission we make is that given what he had said earlier in the voir dire where he had actually said there were a lot of people but he did not notice, that suggests, strongly, that he used the word “see” in the sense of identify, that there may well have been other people but he did not identify them.

Your Honours will recall that he needed an interpreter at various stages through this whole exercise and when he used the words “didn’t see anyone” he was not using an interpreter.  That is really the only matter that really is relevant to this issue that I have been touching on.  The reason I say that it does not matter very much is that even if the only testimony which this Court looks at for the purposes of determining whether or not the leave should not have been granted, we say that his testimony was still neutral.

Your Honours heard the argument I advanced on the previous occasion, that we say, just in summarising it, that he gave no evidence as to who stabbed Carty, except there was no hint that he had done it, and even if he was understood to be saying that Carty stabbed him – which, in my submission he should not be understood to be saying that – but, in any event it is immaterial because, as I have said on the last occasion, I think the last thing I said was that self‑defence was never run at the trial.  I should say that neither the Crown nor the defence suggested that David Carty stabbed Thaier Sako, but that may not be particularly pertinent to this question.

KIRBY J:   I think you told me at the end of the transcript on the last occasion that there was no evidence that Mr Carty had a knife.

MR ODGERS:   That is correct, yes.

KIRBY J:   It would seem inherently less likely than likely, but there was no evidence in the case.

MR ODGERS:   Yes, that is right, your Honour, but I am confronting an argument which I perceive – not an argument, a possible line of reasoning that says, “Well, if Sako said that Carty stabbed him, that would be not neutral; that would assist the defence”, and I am dealing with that proposition.

Therefore, our submission is ultimately that if his evidence was essentially neutral in the sense I have described, the evidence of a prior inconsistent statement, no matter how much it discredits its testimony, cannot have substantial probative value under the test of section 103 properly understood; or at least, we submit, that it is not inevitable that your Honours will recall Justice Wood did not make a finding under section 103.  He certainly said that it had significant probative value, but that was not significant probative value, in my submission, as the test is properly understood under 103 and, therefore, the submission we make is that, on appeal, the question is whether the only proper finding would be that the test in 103 is met and we say that is not the case, that it cannot be said that it is inevitable that the test would be satisfied.

Now, the last thing I was going through, your Honours, was going through the evidence of various eye witnesses and I was attempting to demonstrate that virtually all the eye witnesses placed Thaier Sako, who had been severely injured from the stab wound to the neck, some distance away from David Carty at the time he was stabbed.  The only exception to that is the evidence of Constable Auld.  I will not take your Honours to that, it is to be found at pages 7 to 9 and 27 of the appeal books in volume 1.  I just simply say that it was open to infer from her evidence that Sako was in the vicinity when David Carty was stabbed.  Nevertheless, the submission we make is that the weight of the evidence was that he was some distance away and that that was consistent with his trial testimony, that he did not see what happened at the time that David Carty was stabbed.       But I really have to make, in a sense, my final withdrawal of implicit concession.

On the question of 103 – I know I have not done it in this context – is satisfied, it is my submission that it is really irrelevant to what other witnesses say or said and irrelevant what blood, where the blood was on Thaier Sako.  The argument under 103 stands or falls on the basis that his testimony was neutral, that it did not advance the prosecution case, it did not advance the defence case.  The relevance, really, we rely on the evidence of the witnesses that I took you through on the last occasion was really more to the proviso, and particularly the evidence of Batterham and Davies who identified other persons than the appellant as the attackers of David Carty.  Now, your Honours, that is the end of my 103 argument, and if we lose on 103, it follows that the evidence was admissible for a credibility use, that is, it was a prior inconsistent statement, admissible via cross‑examination of Thaier Sako to discredit him.

That leads to the third argument which is advanced by the appellant and that is that section 60 did not have the effect of rendering that evidence admissible for a hearsay use.

HAYNE J:   Just before you pass to section 60, just can I make sure that I understand the arguments you have just advanced in their broadest outline?

MR ODGERS:   Yes, your Honour.

HAYNE J:   As I understand it, the contention is that a witness who in court says “I saw nothing” should not have a prior inconsistent statement put to them, the prior inconsistent being, to take the extreme case, “I saw the accused kill the deceased”, without the judge assessing whether the out‑of‑court statement is reliable.  Is that the nub of the point that you are making?

MR ODGERS:   No.

HAYNE J:   Then I am sorry, you have lost me. 

MR ODGERS:   Maybe I will restructure the argument.  The first point is the 103 point, which is that in order to admit evidence of the prior inconsistent statement, it had to have substantial probative value as to an issue in the case, via the credibility of the witness.  So that the trial judge in this case should not have admitted the prior inconsistent statement because, whatever its impact on Thaier Sako’s credibility, because his evidence was neutral it could not have a substantial impact on the issues of fact, the facts in issue, ie whether ‑ ‑ ‑

HAYNE J:   Because the witness concerned said in court “I saw nothing”. 

MR ODGERS:   Yes. 

HAYNE J:   So the proposition is:  if a witness says in court “I saw nothing” there can never be an occasion where a prior inconsistent “I saw everything” can be put to them, because the in-court testimony is, as you describe it, neutral. 

MR ODGERS:   I think that is the consequence of the argument, yes. 

GAUDRON J:   And that would be the same - must be the same, if, of course, the accused wanted to cross-examine him to say “But you made a prior inconsistent statement saying that I was 50 yards away”.  Sounds funny that way, does it not? 

MR ODGERS:   It does sound funny.  But, in my submission, it is the consequence of the proper interpretation of 103.  The point about the reliability, to get back to your Honour Justice Hayne’s question, is that when one moves to section 60, really, before you even consider how it works, you have to ask the question, “Is the evidence relevant for a hearsay use?”  Because if it is not relevant for a hearsay use, then section 60 cannot have any work to do.  And our argument is, no, it was not relevant for hearsay use because it was not open to infer from the circumstances or the contents that it was reliable.  That is the relevance of the reliability point. 

HAYNE J:   Yes. 

MR ODGERS:   Then moving to section 60, we say that even if we lose on both of those propositions, that section 60 did not have the effect in this case of permitting it to be used for a hearsay use.  Your Honours have looked at section 60 in the decision in Lee and that case stands, if I might paraphrase it, for the proposition that where, for example, a prior inconsistent statement is admitted into evidence, then, in general, it may be used for the hearsay use, at least where it is first-hand hearsay.  And I will not attempt here to challenge that decision.  The submission we make is that in this particular case, section 60 did not have that operation, and the reason we submit that is that we submit that there is a purposive element in section 60.  It was argued in the Court of Criminal Appeal, and we argue it here, that section 60 has a purpose component, and that it does not apply if the party adducing the evidence does not have the purpose of using the evidence for a non-hearsay use. 

GAUDRON J:   Now I say that there are one or two negatives there.  If party does not apply, if party does not have the purpose ‑ ‑ ‑

MR ODGERS:   The purpose of using for a non‑hearsay use.

GAUDRON J:   You could not put that in the positive, could you?

MR ODGERS:   If the witness does not have the purpose of using it for a credibility use.

GAUDRON J:   Of using it for credibility use.

MR ODGERS:   Then section 60 does not apply.

GAUDRON J:   Well, that may be so but obviously, in the circumstances of this case, the Crown had both purposes.

HAYNE J:   All this seems to invite psychoanalysis of what is happening in the prosecutor’s mind.  Now, there is a fruitful field for tilling.

MR ODGERS:   Your Honour, in this case the argument is fairly clearly identified because in this case it was conceded by the Crown and accepted by the trial judge, and I do not believe disputed here, that the Crown would not have called Thaier Sako if they could not have the out‑of‑court statements used for a hearsay purpose.

GAUDRON J:   Exactly, but all that is to say is that that was one identifiable purpose.  It is not to say that if they could, that they would not also have the purpose of attacking his credibility as to his evidence‑in‑chief.  Indeed, that was the very first step that was required to get to, what you call, the hearsay purpose.

MR ODGERS:   I understand that, your Honour, but my submission is it was a subterfuge, essentially a backdoor method of evading the operation of the hearsay rule.

GAUDRON J:   I do not believe section 60 operates by reference to whether or not we can say the Crown prosecutor engaged in a subterfuge.

MR ODGERS:   That is the submission I make and I will try to support it, your Honour.

GAUDRON J:   Is section 60 not designed to deal with an entirely different situation altogether, that is, the situation where hearsay evidence is admissible because what the person said is, in fact, relevant?

MR ODGERS:   For a non‑hearsay use.

GAUDRON J:   Well, it is directly relevant, yes.

MR ODGERS:   Your Honour, I understand the point you are making but unfortunately Lee is clearly authority to the contrary of that and it was clearly not the intention of the Law Reform Commission that section 60 be limited to that purpose.

GAUDRON J:   How do you say Lee allowed the evidence?

MR ODGERS:   The result of Lee is that where a party gets into evidence a prior inconsistent statement - and, of course, your Honour, the whole point about getting into evidence a prior inconsistent statement is it is an out‑of‑court representation but it is not relied on for a hearsay purpose.  The hearsay rule does not apply to it, that is the common law.  That is the effect of section 59 of the Act, not section 60.

GLEESON CJ:   Do we have the Law Reform Commission ‑ ‑ ‑

MR ODGERS:   That was certainly on the list of authorities.

GLEESON CJ:   I thought it was.  My recollection is that the Law Reform Commission actually gave a series of examples of the way they intended these provisions to operate.

MR ODGERS:   They did, your Honour, and that was referred to in Lee.  But to answer your Honour Justice Gaudron’s question, the Law Reform Commission indicated that when it comes in for the credibility use that it would be asking too much of juries to expect them to use it for that purpose and not to use it for a hearsay purpose.

GAUDRON J:   Exactly, yes.

MR ODGERS:   And that once it comes in for the non-hearsay use, it can also be used for the hearsay use.

GAUDRON J:   Yes, but that does not cut across what I am saying.  If you look at section 60, it is talking about evidence “that is admitted because it is relevant for a purpose”.  So we are not talking about purpose at all.  You have to see if the evidence is relevant.  Now, you want to inject into that different words.  You want to make section 60 do a different job altogether, do you not?  You want to say ‑ ‑ ‑

MR ODGERS:   Well, I have articulated precisely what I say on page 10 of the written ‑ ‑ ‑

GAUDRON J:   In page where?

MR ODGERS:   Page 10 of the written submissions.

GAUDRON J:   Yes, I will see if I understand it better then.  Paragraph?

MR ODGERS:   Paragraph 5.17 and paragraph (b) is what we say it means.

GAUDRON J:   Well, I do not see that (a)  ‑ ‑ ‑

GLEESON CJ:   My memory may be playing tricks with me now, but I thought that one of the examples that the Law Reform Commission gave of the way this would operate related to a civil action.

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   And they said, “Suppose that in a personal injuries case a doctor’s notes of a conversation with a patient are admissible in evidence for the purpose of proving the history that the doctor was given, in order to support a doctor’s opinion evidence”.  Is that not one of the examples the Law Reform Commission gave and said once that gets in for that purpose, it becomes evidence, or to be more accurate, the hearsay rule does not apply.  Section 59(1) ceases to apply.

MR ODGERS:   Yes, and therefore, what the patient said to the doctor can be relied on for the truth of what was asserted.

GLEESON CJ:   As some evidence of the fact represented by the doctor to the patient.

MR ODGERS:   Represented by the patient to the doctor.

GLEESON CJ:   By the patient to the doctor.  So if, for example, the patient is the plaintiff and the doctor’s notes record that the patient said to the doctor, “I go weight‑lifting every Saturday morning”, and the patient comes along as a plaintiff and says, “I cannot lift a box of matches”, then that might get in under section 60 because the doctor has gone into the witness box ‑ ‑ ‑

MR ODGERS:   It has not got in under section 60; it has got in because it is not caught by section 59.

GLEESON CJ:   That is right.

MR ODGERS:   But once it has come in, then ‑ ‑ ‑

GLEESON CJ:   Section 59 ceases to apply.

MR ODGERS:   Correct.

GLEESON CJ:   But that could also be a statement in the example that I gave in a civil case of a prior inconsistent statement.

MR ODGERS:   Yes.

GLEESON CJ:   It would be both.  It would get in both ways.

MR ODGERS:   It would come in under 102 and 103.  Once it got through them, it would admitted for the credibility use, but the effect of section 60 would be that 59 would not apply.  I do not know if that has answered Justice Gaudron.

GAUDRON J:   Well, is that what you say here?  I understand that but ‑ ‑ ‑

MR ODGERS:   Your Honour, I would like to submit to the contrary, but I cannot.

GAUDRON J:   Well, I thought that is exactly what you were doing.

MR ODGERS:   Your Honour, what I am doing is saying that while that generally the case, that is the general effect of section 60 ‑ ‑ ‑

GAUDRON J:   Well, that either is the effect of section 60 or it is not.

MR ODGERS:   No, your Honour, with respect.  If it is interpreted in the way that we advance it should be under 5.17(b) then ‑ ‑ ‑

GAUDRON J:   What possible basis is there for construing it that way?

MR ODGERS:   I will advance the argument.

GAUDRON J:   “For a purpose of the party adducing the evidence.”

MR ODGERS:   Your Honour, in the vast ‑ ‑ ‑

GAUDRON J:   You are reading words into the section that simply are not there.  Section 60 talks about evidence that is admitted.

MR ODGERS:   Yes, your Honour, it has been, and that is true of both interpretations.  When it has been admitted, it has been admitted for a credibility use.  The point we are making is that if, in fact, that was a subterfuge – I will put it as bluntly as that – and if it is admitted to being a subterfuge, then ‑ ‑ ‑

GAUDRON J:   That may bear on discretionary considerations.

MR ODGERS:   No, I submit that the proper interpretation of section 60 is it does not apply, and the reason I say that – well, a number of reasons I say that – but, in my submission, it is open to interpret section 60 in those terms.

GAUDRON J:   On what basis?

MR ODGERS:   On what basis do I say that paragraph (b) - - -?

GAUDRON J:   Is there any ambiguity about it in the words, in the language, in the context?

MR ODGERS:   Well, the words “because it is relevant for a purpose” other than ‑ ‑ ‑

GAUDRON J:   That is “admitted because it is relevant for a purpose.”  That is the phrase.

MR ODGERS:   Yes.  Well, I have submitted that “that can bear the interpretation” has been admitted into evidence for a purpose of the party adducing the evidence other than proof of the fact intended to be asserted.

GAUDRON J:   Even if you read it that way, the sentence begins with “The hearsay rule does not apply.”

MR ODGERS:   Yes, if that condition is satisfied, and my submission is ‑ ‑ ‑

GAUDRON J:   What, if the evidence has been admitted because it is the purpose of the person leading the evidence to use it for a hearsay purpose?

MR ODGERS:   No, where it is the purpose of the party leading it to use it for a non‑hearsay purpose.

GAUDRON J:   I think you have lost yourself in the negatives again, Mr Odgers.

MR ODGERS:   I am not sure how I can express it positively.

GAUDRON J:   So, that is the difficulty, because ‑ ‑ ‑

MR ODGERS:   All right, perhaps I will put it this way, if the only purpose of adducing the evidence was to rely on the truth of the facts asserted in it, then section 60 does not apply.

GLEESON CJ:   Then let me come back to my example of a civil case because I think we sometimes forget that the ordinary case in which these provisions will operate will be a straightforward civil action.  Suppose that in the example I gave you the opinion of the medical practitioner is supported by the opinion of half a dozen other medical practitioners and really does not, in truth, add anything to the case, the party calling the medical practitioner could do perfectly well without him, but counsel for the party wants to get in that doctor’s notes because of that statement about the weight‑lifting activity.

MR ODGERS:   Yes.

GLEESON CJ:   So, is it your proposition that you could object to that evidence by saying to the trial judge, “Look, this party does not really need the opinion of that doctor about what the prognosis for this witness is.  There are half a dozen other doctors who say exactly the same thing and there is no serious dispute about it in the case, it is neutral, but what is going on here is that counsel wants to get those doctor’s notes in because counsel wants, ultimately, to convince you that, contrary to what he is saying in the witness box, this man can lift weights.”  That is your proposition?

MR ODGERS:   Yes, exactly, and, of course, in this case it was not just seeking to ask the judge to draw that inference; we had an admission by the Crown that that was precisely what they were doing.  As for why we submit that that is the proper interpretation of section 60, the primary reason we say it is because it is consistent with the rationale of the provision.  Maybe this not demonstrate that it is the correct interpretation but it goes, we say, a step in that direction.  Your Honours will recall that the rationale for this provision is to prevent mental gymnastics of a jury or a tribunal of fact, that where evidence has been admitted for one use they do not have to try to say, “Well, we can use it for that use but we cannot use it for the hearsay use”.

If the party had no purpose other than hearsay use, the example your Honour gave of, “Really, they are only calling this expert because they want the hearsay use and would not call the witness if they could not get it in for the hearsay use” – that is this case – then the jury would not be confronted with the schizophrenic task.  There would not be any problem for the jury of the sort that the Law Reform Commission was concerned about and therefore the central rationale for section 60 is not applicable.  That is the first point.

The second point is that this approach to section 60 we say is quite consistent with what the High Court held in Blewitt’s Case 62 ALJR 503. Now, Blewitt was, of course, decided under the common law but it was a decision that was made subsequent to the Law Reform Commission Reports.  I will take your Honours to that, if I might.

The second point is that this approach to section 60, we say, is quite consistent with what the High Court held in Blewitt’s Case.  Now Blewitt, of course, was decided under the common law, but it was a decision that was made subsequent to the Law Reform Commission reports, and I will take your Honours to that if I might. It is 62 ALJR 503.

HAYNE J:   Just before you do, all these submissions seem to proceed upon an unstated assumption that circumstances at trial never change and that you can fix the purpose of counsel with a degree of certainty that obviously you assert seem to be possible, but my memory of it has obviously faded completely.

MR ODGERS:   No, your Honour.  In 99.9 per cent of cases the interpretation, we submit, of section 60 will have no operative effect.

GLEESON CJ:   Mostly because you will never be able to know what counsel really is seeking to do.

MR ODGERS:   Precisely.

GLEESON CJ:   It is because of your background experience and the frankness of the New South Wales Bar that you are attributing this openness to counsel.

MR ODGERS:   Well, your Honour, I would fully anticipate that if this appeal is allowed on this basis, that one would not anticipate a large number of cases in the future where Crown prosecutors would be quite so forthright, but the fact of the matter is, this Crown Prosecutor was so forthright, and there was a good reason for him being so, because he understood that Blewitt was authority which in fact mandated the approach that he took.  He understood correctly that if the evidence was not admissible for a hearsay use, it would be wrong for him to call Thaier Sako as a witness.  So he appreciated that if he could not get it in for a hearsay use, that he would not call him at all.

In Blewitt, your Honours, the Court was, as I said, dealing with the common law and not this Act, but the two relevant passages of the Court’s judgment are at page 505 of the ALJR.  Paragraph E on the left-hand column:

The crux of the applicant’s submission is that the prosecutor knew that A D Blewitt was a hostile witness, at least from the time he gave evidence on the voir dire, and that the only reason or purpose for calling him was to place the prejudicial prior inconsistent statement before the jury.  It is established that the calling of a witness known to be hostile for the sole purpose of getting before the jury a prior inconsistent statement which is inadmissible to prove facts against the accused is improper and might well give rise to a miscarriage of justice:  see R v Thompson and R v Hall –

The Court proceeded to say that there was no substance in the suggestion that that was the sole purpose in that case.

The other passage that I would draw to your Honours’ attention is on the right-hand column and it is about point 8 and it is towards the middle of the second last paragraph, and it begins with the words:

This was not a case in which the witness was called merely in order to place before the jury the contents of what would otherwise be an inadmissible out-of-court statement.

To take the example your Honour the Chief Justice gave, if the expert was only called for the purpose of putting before the jury an otherwise inadmissible out-of-court statement, it is clearly implicit in this decision of the Court that that should not occur.

GLEESON CJ:   But it was not otherwise inadmissible, it was otherwise admissible, and that is what leads to the modification of the hearsay rule.

MR ODGERS:   No, your Honour.  There are two ways of looking at it, again.  The approach your Honour has just taken was the approach that the Queensland court took in respect of the Queensland legislation in Hall.  They said, “Look, because of 101 of the Queensland Act, once it comes in as a prior inconsistent statement, it is also admissible for a hearsay use, therefore, the principle in Blewitt does not apply.”  But I would approach it, with respect, in a different way and it is to ask this question:  is the situation that the party is calling the witness for the sole purpose of putting before the tribunal a fact, an out-of-court statement which would otherwise be inadmissible?  If you ask that question, the answer is yes.  What Thaier Sako said to the police was otherwise inadmissible.

GLEESON CJ:   You seem to be using “purpose” to mean “motive”.

MR ODGERS:   I think I am nervous about conceding that, but it is close to that, yes, your Honour, yes. 

GAUDRON J:   To take that a little further, you are talking about counsel’s motive, not forensic purpose?

MR ODGERS:   Yes, the purpose of the party, rather than what is said to be the use to be made of it.

HAYNE J:   Thus we shift the focus from how the jury may deal with it to what is in the breast of the prosecutor, a very curious use of the Evidence Act.

MR ODGERS:   Well, it is curious, but we say that that interpretation of section 60 actually achieves the results in Blewitt.  Now, that is not a good reason necessarily for saying that it should be so interpreted, but our submission is that there is nothing in what the Law Reform Commission said which is to the contrary of that interpretation.  We say that interpretation is quite consistent with the central rationale of section 60, as I have explained, and we say that in 99 per cent of cases, the party calling the witness will have a credibility purpose, will be intending to discredit and hearsay use.

HAYNE J:   That is, are you inviting us, in truth, to come round behind Richardson and Apostilides, that is, are you inviting the Court, in effect, to have the Court pass upon the way in which the prosecutor has performed his or her duty?  That gets the Court into areas where hitherto the Court has said it should not go, those duties being the duties of the prosecutor.  The Court is concerned with what the jury does or it can do with the evidence.

MR ODGERS:   But, your Honour, my submission is that section 60, properly interpreted, requires that.

HAYNE J:   Yes.

MR ODGERS:   I appreciate that it could be said against me that it is unlikely that the Parliament of New South Wales intended that a judge would enter into that territory.  I appreciate that argument but the submission I make is not in conflict with those cases.  It simply is a submission that the effect of section 60 is to require a judge to address the question of whether or not the party adducing the evidence is engaged in the process that your Honour the Chief Justice mentioned and the one that I am referring to, which is a process of evading the operation of the hearsay rule by this procedure.

GLEESON CJ:   But this is the problem.  The hearsay rule does not exist outside the Evidence Act.  What is now the hearsay rule in proceedings conducted under the Evidence Act is section 59 as modified by other provisions, including section 60.

MR ODGERS:   Of course, your Honour, but the effect of section 59, absent section 60, is that what Thaier Sako said to the police was inadmissible, full stop.  That was the effect of section 59.  The Crown was seeking to, what I will call bluntly, evade the effect of that provision by this mechanism.

HAYNE J:   Let us put it in these terms.  The immediate task of the trial judge was to exercise the discretions called for by section 38, was it not?

MR ODGERS:   I have not even got to that yet.

HAYNE J:   I understand that, but that is the immediate task of the trial judge.

MR ODGERS:   Yes, your Honour.

HAYNE J:   Your contention seems to be that in exercising the task under 38, the judge should take account of what you call the purposes, what seem to be close to the motives of the Crown for making the application that it does.  Is that to mischaracterise what you are putting?

MR ODGERS:   Perhaps to oversimplify it, with respect, your Honour.  It was plainly necessary for the judge to determine the question of the operation of section 60 as part of the process of determining leave because it was accepted by the Crown that it would not be appropriate to grant leave.  Indeed, the Crown accepted they would not call the witness at all unless section 60 applied to permit the evidence to be used for a hearsay purpose.  So it was essentially a pre‑condition to the grant of leave that section 60 operated, unless section 66 operated, but I will come to that in a moment.  If the hearsay rule applied to the out‑of‑court statement then there was no dispute that leave would not be granted and that Sako would not be called.  Has that answered your Honour’s question?

HAYNE J:   It is the answer you give.

MR ODGERS:   The best one I can give.

GLEESON CJ:   It may be difficult to construe this legislation as aimed at preventing people evading the hearsay rule, bearing in mind the extreme disrepute into which, according to the Law Reform Commission, the hearsay rule had fallen at the time this legislation was enacted, as reflected, for example, in paragraph 329 of the Interim Report No 26, volume 1.  That, you would no doubt remember, is the one that refers to “an old‑fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists”.

MR ODGERS:   Nevertheless, your Honour, the fact of the matter is the Law Reform Commission recommended retention of the rule and it was retained and certain exceptions were created.  The critical issue here is what was the purpose of section 60 and the purpose of section 60 was apparently simply to avoid the problem of juries having to be schizophrenic and that was the purpose of section 60.  The argument I make is they would not be required to be schizophrenic if the witness would not have been called at all because they would not have to sort of say, “Well, we can use it for credibility use, but we can’t use it for hearsay use”, so that the rationale of section 60 falls away.

Your Honour, I think I should make it clear I am not submitting that the Law Reform Commission addressed this issue.  I do not think they did because Blewitt, of course, was subsequent to this case and I have been unable to find anywhere in the Law Reform Commission reports any discussion of this question.  It is my submission that it was just simply not addressed by the Commission and the ultimate question is the proper interpretation of section 60.  I submit that there are two alternative interpretations and I submit that the one we have advanced should be adopted by this Court for the reasons that I have attempted to give.  I will not say any more about that.  It is necessary for me to then move on and deal with section 66 because even if my arguments on section 60 or the other arguments I have advanced, succeed, if the evidence was admissible under section 66, that is a major problem for the appellant.

GLEESON CJ:   Does this turn on freshness? 

MR ODGERS:   Yes.  It appears clear that there was no ruling by the judge ‑ ‑ ‑

GLEESON CJ:   Could you just remind us what the facts are? 

MR ODGERS:   Yes, your Honour. 

GLEESON CJ:   About the time sequence. 

MR ODGERS:   Your Honours will see from the further amended chronology what the sequence was.  The death of David Carty on 18 April 1997, and Thaier Sako declined to be interviewed, and then he was interviewed for the first time on 2 July 1997, and then reinterviewed on 1 September 1997.

GAUDRON J:   Is there any relevant difference between those interviews? 

MR ODGERS:   No, I do not think that the second interview significantly adds to the first.  So the critical period of time is the 10 weeks between the death of David Carty, between the incident itself and the making of the first interview. 

GLEESON CJ:   And the issue is whether or not, when he was interviewed electronically on 2 July, the events about which he spoke would have been fresh in his memory. 

MR ODGERS:   Yes, your Honour.  There may be a subtle distinction between – again it relates to this question of the nature of appellate review.  The submission we make is that since there was no finding on that question by the trial judge, that the issue is whether or not the only proper conclusion would be that it was fresh. 

GLEESON CJ:   Where do we see the Court of Criminal Appeal dealing with this? 

MR ODGERS:   I will find that for your Honours.  It is in volume 7. 

GLEESON CJ:   Mr Waterstreet can look it up for you and you can let us know. 

MR ODGERS:   Yes.  It is almost the last thing in the Court of Criminal Appeal judgment.  I will get the page references – 1664 and following. 

GLEESON CJ:   Thank you. 

MR ODGERS:   To summarise what the court said, I think they said that it was arguable that the evidence satisfied 66 but it was not necessary for them to determine the question, because they held that the judge was correct to apply section 60 in the way that he did.  So the court did not hold that section 66 was satisfied, nor, obviously, did they hold that the only proper view was that section 66 was satisfied, therefore, it is necessary for me to address that question. 

The submission we make is that it was not and certainly not inevitably be held that the evidence was fresh.  Your Honours, just to remind you of section 66, it was looked at in Graham’s Case.  As your Honour the Chief Justice has, with respect, correctly stated, the question raised by section 66 is whether at the time that Thaier Sako made the representations he did to the police, 10 weeks after the event, that those representations were fresh in his memory – I am sorry, that the events in respect of which he made the representations were fresh in his memory. 

GLEESON CJ:   I suppose if you wanted to be really absolutely precise, “whether the occurrence of the asserted facts was fresh in his memory”.

MR ODGERS:   Yes, thank you, your Honour.  Now, firstly, it is relevant to note that Sako gave no evidence that the events were fresh.  He did not say they were fresh, he did not say they were vivid.  Indeed, his evidence was to the contrary.  He said that he had no memory at all of them because he did not see them because he was just recounting what other people had told him.  So there is no evidence from him to support a finding of freshness.  The trial judge did say something which, no doubt, the respondent will rely on, which suggested that he thought it might be fresh, at the very least.  Your Honours will see at page 1082 of the appeal book, in volume 5, at line 30 his Honour referred to an argument of the Crown that:

the witness offered to participate in the interview only eight weeks -

and, of course, it was ten weeks -

after the event, and the subject matter of it involved him so centrally and was so significant that he was unlikely to have forgotten any details.

I am sorry, it is pointed out to me that, of course, that is strictly correct.  The offer was made only eight weeks after but the interview itself was 10 weeks.  His Honour appeared to regard that proposition as persuasive because he said, at 1085, globally, at line 25, “The points identified by the Crown I find persuasive”, and that was a reference to the 16 points which were listed in his judgment between 1082 and 1084.

HAYNE J:   And the record “more probably than not reflected his observations on the night”, his Honour goes on.

MR ODGERS:   Yes, to the extent that that bears on the question of freshness.  The submissions we have made in respect of this are to be found in the appellant’s reply at paragraph 4.  Do your Honours have that?

KIRBY J:   Do you attack any of those 16 grounds?

MR ODGERS:   Yes, your Honour, but I will come back to that in the context of the grant of leave under section 38.  But for the present purposes of section 66, the only relevant thing said by the judge was that passage I have just taken your Honour to.  In paragraph 4 of the reply, we have advanced six arguments on this question.  I will not read out what I have said there, obviously, but I have referred in paragraph (e) to the psychological research underpinning the Law Reform Commission recommendations.  This, of course, is relevant for the purposes of determining what “fresh” means in section 66.

KIRBY J:   Where is that?

MR ODGERS:   Where is the psychological research?

KIRBY J:   Or where is the reference to it?

MR ODGERS:   In paragraph (e) on page ‑ ‑ ‑

KIRBY J:   I see, yes.

MR ODGERS:   I will not take your Honours to it.  The major aspects of that research which we rely on are to be found in volume 1 of the interim report at paragraph 665 and also page 235.  If I could just summarise it, two points are made there.  Firstly, the psychological research tends to show that people forget things very quickly.  The Law Reform Commission referred to what is called a curve of forgetting and they said, “Well, it seems that people forget huge amounts of information very rapidly”.  That is the first point.  The second point they made is the fairly obvious one that memory over time is contaminated by your experiences and what you are told by other people and so on and so forth.

More importantly, can I take your Honours to what the Law Reform Commission said.  What I should do is take your Honours to what the High Court said in Graham 195 CLR 606. Perhaps I really should do that first.

GLEESON CJ:   What was the time element there?  I think it was six years or something in that order – six or seven years.  The relevant passages are to be found, firstly, in the joint judgment of your Honours Justice Gaudron, Gummow and Hayne at paragraph 4 and it goes on into paragraph 5.  If I could just ask your Honours to just look at those passages.  Your Honours will see at the end of paragraph 4, for example:

likely to be measured in hours or days, not, as was the case here, in years.

It leaves the interesting question of where weeks fall or months.

GLEESON CJ:   This was a case about whether fresh equalled vivid, and the Court held it did not.

MR ODGERS:   That is correct, your Honour.  That is right, but, nonetheless, we do rely for whatever value we can on these observations of principle contained in the judgements.  I have to accept that Graham does not determine this case, plainly.  This case raises the issue rather more graphically what the scope of section 66 is.  The other passage that is relevant is, of course, in the judgment of Justice Callinan, which your Honour the Chief Justice agreed with, and the key passage there is paragraph 34 and he used words of “contemporaneity or near contemporaneity”.

KIRBY J:   What do you say it means in the subsection?

MR ODGERS:   I am content to rely on the words of the majority, which is “hours or days”.  How far the days go will depend on other factors.  If the witness, for example, says, “Well, you know, a few days later I” – a week later, let us say.

GLEESON CJ:   One of the factors of course is what it is you are remembering.

MR ODGERS:   Yes.

GLEESON CJ:   If it is a question of whether or not the fact that you have shaved yourself is fresh, one result might follow; if the question is whether or not your recollection of a violent murder is fresh, a different result might follow.

MR ODGERS:   My response to that is that the Law Reform Commission, in referring to the psychological material, there seemed to be some recognition that some events are more likely to be remembered longer than others.

GLEESON CJ:   Some events are more memorable than others.

MR ODGERS:   Yes.  But, having said that, one should be careful about doing what, for example, the Court of Appeal did in Graham and say, well, look, you are going to remember for the rest of your life that you were raped, for example; I mean, commonsense might suggest that that would be a certainly vivid, and some might think fresh, memory, as though it happened yesterday, for example, would be the kind of reasoning that might be adopted, but it is clear with respect from what the Law Reform Commission was saying in both its discussion of the psychological material and its discussion of this provision, that it did not have in mind the possibility that freshness could be satisfied in those circumstances.  It is clear that the Law Reform Commission saw that the concept really meant at the time or very soon after.

Can I just take your Honours to two passages from the Law Reform Commission reports which assist.  This is in volume 1 again, paragraph 678, and on page 372 there is a discussion of what the – this is under the heading:

Rationale for Exceptions

Under the dot point:

Contemporaneous’ First-hand Hearsay.

It is stated:

A distinction can and should be drawn between statements made during or shortly after the events to which they refer and later statements.  The least unreliable account of events is likely to be that given at or shortly after the event.  Experience suggests that the account of an event given shortly after the event will be more accurate than one given months or years after the event.  We have all experienced the loss of memory of the detail of events.  Psychological research, however, suggests that loss of memory is more dramatic than we realise and that we under-estimate the extent to which the memory is affected by a variety of distorting factors over time.

KIRBY J:   What was the longest integral in the common law res gestae that you are aware of?

MR ODGERS:   Your Honour, I would say an hour.  I cannot think of any example beyond an hour.  I am stretching to even think of cases more ‑ ‑ ‑

GLEESON CJ:   To satisfy that test it has to be part of the transaction.

MR ODGERS:   That is right.

KIRBY J:   Presumably the foundation of that has some similar route.

MR ODGERS:   Well, it is interesting, your Honour.  At common law there was some controversy about res gestae.  There was a view that it really just meant part of the transaction and you were not really concerned about hearsay issues like reliability, for example.  Then the House of Lords in a case called Andrews said that the test – it did not have to be strictly contemporaneous; it could be a statement made shortly after, as long as you could exclude the possibility of concoction or distortion.

GLEESON CJ:   What happened about that case where somebody came staggering out of a house wounded and said, look ‑ ‑ ‑

HAYNE J:   Bedingfield.  “Look what Bedingfield has done to me.”  He was going from one room to another, was he not?

KIRBY J:   Every law student hears it.

MR ODGERS:   Yes.  Well, Andrews was slightly different because that was a case where the police turned up at the scene and found the victim lying stabbed, and they said to him as he is lying there, “Who did this to you?”  The House of Lords held that fell within the res gestae doctrine, although it did not seem to fit within the Bedingfield analysis because it was not part of the transaction of the stabbing; it plainly was discrete.  That is, as I say, why the House of Lords extended res gestae and seemed to incorporate some conception about reliability.  Critically importantly, they emphasised the test was there was no possibility of concoction.

HAYNE J:   Well, there may be; there may not be a question about whether freshness is affected by the detail of the statement.  The statement, “I saw a murder,” may differ from, “I saw a murder and here 27 paragraphs which detail the particular elements of what I saw.”  Perhaps; perhaps not.  Freshness with have some different application to two such cases; I do not know.

MR ODGERS:   I accept that, yes, that you must be careful about generalisations.  Of course, the critical issue here is the out-of-court statements that Thaier Sako not only saw people around David Carty, but gave names to the faces, that is, identified them and also testified in respect of the appellant that he was attacking David Carty.

KIRBY J:   You say that the interval of 10 weeks is too far for that level of accuracy, even though he might recall the murder, but the cases on identification evidence and the cases on memory generally suggests that 10 weeks is too long?

MR ODGERS:   I am hesitating, your Honour, because one has to be careful about just simply transposing the concept of reliability to freshness.  Freshness does not ‑ ‑ ‑

KIRBY J:   Why do we require freshness, other than because if it is fresh, it is likely to be reliable?

MR ODGERS:   The point I am making is that if it is not reliable, then it almost certainly will not be fresh, maybe it will be, but the point I am trying to make is that even you think it is likely to be reliable, that does not necessarily mean it is fresh.  They are concepts ‑ ‑ ‑

KIRBY J:   What is the reason why the common law first and now the statute ‑ ‑ ‑

MR ODGERS:   But, your Honour, as I explained on the last occasion, these are completely discrete doctrines.  Section 66 is not a statutory modification or formulation of res gestae.  Just to make that absolutely clear, res gestae is found in section 65 of the Act.  Can I just take your Honour to that briefly?

KIRBY J:   I do not need convincing of that, but I am asking you why did the Commission and the Parliament insert the requirement of freshness, other than because if it is fresh, it is likely to be reliable.  If it is not fresh, it is likely to be contaminated and unreliable.

MR ODGERS:   I accept that, your Honour.  The rationale was that if it was fresh, it was likely to be more reliable than the in-court testimony and given the fact that you could cross‑examine the witness, it should be permitted.  The critical thing is, if it is fresh.

KIRBY J:   Yes.  Well, the questions you have been asked and the answers you have given tend to suggest if it is at the level of generality, “I saw a murder”, then the freshness will not be relevantly impeded by the fact that it is 10 weeks.  If it is, “I saw a murder and there was a group of people around”, likewise.  If it gets to “I saw a murder and I saw the accused there”, maybe likewise.  But it is when it gets to the particular positioning and the particular conduct and actions, that 10 weeks is quite a long time.

MR ODGERS:   I do not dispute any of that.

GLEESON CJ:   Does that mean that part of the occurrences might be fresh and part not?  Does that mean, then, that some of it gets in and some of it does not?

MR ODGERS:   I think my submission is that none of it.  In this case, 10 weeks was just simply none of it would be fresh.

KIRBY J:   Not even recollection of seeing a murder, seeing somebody killed?

MR ODGERS:   No, because the approach the Law Reform Commission took, talking about shortly after and the reference to hours and days just does not seem to fit, with respect to – sorry, the 10 weeks just seems to fall outside that concept.  If your Honours do not accept that submission, then obviously I submit that while at the most general level it might be fresh, the more detail you get into, the less likely it is going to meet that test.

GLEESON CJ:   This may not matter in the present case, but is there some possibility of severance on that basis in some other case?

MR ODGERS:   Yes, plainly, because section 66 applies to each and every statement, out‑of‑court statement, so that you might say this statement met the test in 66 and is admissible hearsay whereas that statement does not.

KIRBY J:   But the assumption is that there is a certain interval that will deprive the statements generally of freshness.  Is not the assumption that it either gets in or does not get in as a package?

MR ODGERS:   I am not sure I can find anything to support that in the Commission’s report.  I think the Commission was at pains to stress the point that when you assess the application of the hearsay rule you look at each separate statement.  It may be that you can say seven years after the event we do not need to get into discrimination of that sort and we can say the whole package goes out, but if you say, for example, a week after the event, you might say some of it will and some of it will not.

KIRBY J:   But all of it will have the same freshness, in a sense.

MR ODGERS:   No, your Honour, that may be the point, that it may not.

GLEESON CJ:   I am not suggesting again that this question arises in the present case but I am curious.  Can memory be refreshed for the purpose of applying section 66?

MR ODGERS:   Your Honour, I cannot answer that.  There is nothing that I recall in the Law Reform Commission discussion about that question.  I do not recall what the psychological research was on that.

GLEESON CJ:   Some day some court might have to consider whether or not section 66 is satisfied because a person’s memory has been refreshed.

MR ODGERS:   I think that the answer is likely to be no, your Honour, because I think the answer would be the danger that the memory has been contaminated by the refreshing process would mean necessarily that it could not be regarded as fresh.  I think that would be the answer.

KIRBY J:   It is true that the subsection talks of the “asserted fact” was fresh in memory, which seems to allow differentiation between one fact, ie, there was a murder, and another fact, ie, he stabbed somebody or was in a particular configuration.

MR ODGERS:   The only other passage I take your Honours to in the Law Reform Commission discussion is at paragraph 693.  This is on page 383.  Again there is a discussion in paragraph 693 of the operation of this provision in criminal proceedings and your Honours will see, at about seven lines down, it says:

The proposal would have the effect that complaints in rape trials which are at present received only as showing the consistency of the rape victim could be received as evidence of the matters stated, as long as they were made when the facts were fresh in the memory.  Also, evidence of out‑of‑court identification would be admitted.  The risk of fabrication is reduced by requiring that the representation be made when the facts described were fresh in the memory.

We place some reliance on that sentence for this purpose:  we say that those words suggest that a judge, in determining how section 66 operates, should take into account any substantial risk of fabrication, on the basis that the delay between the event and the representation may permit an opportunity for fabrication, and that evidence will not be fresh if there is a substantial risk that it has been contaminated by external influences or, we would say, internal motivations.  We say this case is an obvious example of precisely that kind of danger, and that is an additional reason for concluding that the events were not fresh in the mind of Thaier Sako at the time that he spoke to the police.  That is all I will say about section 66. 

If the evidence was not admissible under section 66, then, even if the arguments we have advanced on section 103 and section 60 fail, we submit that the trial judge erred in granting leave under section 38, that his discretion to grant leave miscarried.  If your Honours would hold that the evidence was admissible under 66, we still argue that the discretion miscarried, but I think it would be true to say that it would be harder for us to succeed on the argument of the discretion miscarrying. 

GAUDRON J:   You mentioned on the last occasion – it is something that has been troubling me – that the overall effect of the assertion by Mr Thaier Sako, that he was just repeating what other people had told him, rendered cross-examination as to the reliability of his – as to what he actually saw, very difficult.  Do you want to elaborate on that ‑ ‑ ‑

MR ODGERS:   Certainly, your Honour.  

GAUDRON J:    ‑ ‑ ‑ because, ultimately, one is talking about identification evidence here. 

MR ODGERS:   Yes, your Honour. 

GAUDRON J:   Which as we all know, is subject to a lot of ‑ ‑ ‑

MR ODGERS:   Concerns. 

GAUDRON J:   Concerns.  Yes.  You were talking – the evidence of a person who had been stabbed who ‑ ‑ ‑

MR ODGERS:   Was drunk. 

GAUDRON J:    ‑ ‑ ‑ and, on any view, whose evidence, if it had been direct, would necessitate a warning.  So I think they are matters that do, in fact, go to the discretion, very directly.  But this cross-examination, can you assist me further by reference to any incidents that appear in the transcript where cross-examination was frustrated, in that ‑ ‑ ‑

MR ODGERS:   I will give you an example of that in a moment, your Honour.  Could I just, before I get to that, perhaps make a more general statement about the issue of leave.  This is an appeal against discretion, and of course, the limitations of appellate review of that are applicable.  We have to show that the discretion miscarried.  We have advanced arguments in support of that contention in the written submissions ‑ ‑ ‑

GAUDRON J:   You do not contend that his Honour was in error in asserting that he required a high probity value of the evidence before he would allow this course.

MR ODGERS:   Curiously enough, your Honour, I will be making that submission in a minute and I will explain why because it sounds, on the face of it, implausible.  We have advanced a number of arguments in the written submissions and they are to be found at paragraph 5.28 and they go over pages 15 and 16 of the written submissions.  What I want to do is not restate those but to advance five oral arguments which, to some extent, incorporate what is written there.  My fourth argument will deal with what your Honour Justice Gaudron has raised.  But there are three I want to advance before I get there.

The first argument is this.  It is submitted that the trial judge failed to take into account a relevant factor and that relevant factor was the one that I have stressed throughout the proceedings today, which is that the Crown was seeking to evade the operation of the hearsay rule.  The only purpose in calling Sako was to get in otherwise inadmissible hearsay.  The only purpose in seeking leave was to get in otherwise inadmissible hearsay.  If it was not admissible for a hearsay use, they would not have called him and they would not have sought leave.  We say that that was a relevant consideration in the exercise of the discretion and it was not referred to.  The second argument is that the trial judge erred in regarding the reliability ‑ ‑ ‑

GAUDRON J:   But is that not precisely why his Honour said he would only let it in if he was satisfied that it had a high probative value.  I would have thought that would be the only consideration that would lead the trial judge to formulate that test.

MR ODGERS:   All I am doing for the purposes of the argument so far is to say that that was a factor which his Honour did not advert to.  It may be your Honour is correct in saying that it is implicit in his requirement of high probative value that he appreciated that that was a counterargument to granting leave.

KIRBY J:   But is there not a problem with this?  The higher the probative value the more important it is that it be reliable.

MR ODGERS:   Yes.  Can I just say my second argument and that may answer your Honours, I do not know.?  The second argument we advance is that it was not relevant to the grant of leave under section 38 to assess the reliability of the out-of-court statement, not relevant.

GAUDRON J:   I should have thought it was critically relevant.

MR ODGERS:   I will explain why.  In exercising the discretion – can I take your Honours to section 38?

GAUDRON J:   Perhaps you should tell us what it is that you say conditions the exercise of that discretion.

MR ODGERS:   That is exactly what I am going to say.  In exercising the discretion under section 38, it is important to identify the statutory premise or rationale behind it.  Here, leave relates to cross-examination about testimony.  In 38(1) there is a reference to “unfavourable” testimony, there is a reference to testimony where you are not “making a genuine attempt” to tell the truth about something, and there is, in paragraph (c), where you have made a previous representation which is “inconsistent” with testimony.

The purpose of section 38 is to allow a party who calls a witness to challenge and contradict the testimony of the witness and so cross‑examination about a prior inconsistent statement is permitted to challenge and contradict the witness’ testimony.

GLEESON CJ:   Sorry, why do you say that?  Why do you say that is the only reason?

MR ODGERS:   In my submission, that is the rationale behind section 38:  to permit a party who calls a witness who gives testimony to be able to challenge that testimony by, in this case, demonstrating that the witness has said something different on another occasion.  If that reasoning is correct, then whether, if admissible, the prior inconsistent statement becomes evidence of the truth of what was said, is not relevant to the exercise of the discretion to give leave under section 38.  It is not relevant to consider the reliability of the out-of-court statement.

GAUDRON J:   What is?  What is the test?  You said you were going to tell us what ‑ ‑ ‑

MR ODGERS:   Does the evidence sought to be adduced in cross‑examination tend to contradict or challenge the testimony of the witness.

GAUDRON J:   Well, again, but for this funny inquiry, you would not know.  The judge would not know.  What happens here is 38(1) specifies what the cross‑examination may be about.  It is sufficient that it is – now, normally, one would think that the only purpose of having a witness declared hostile and to cross‑examine him was to challenge.  To say that that is the purpose really does not tell you what it is that conditions the discretion.

MR ODGERS:   We say that they are interrelated.

GLEESON CJ:   This discretion will typically fall to be exercised in a criminal case where somebody who has given an account of the events on a previous occasion is being, as they say, “unco‑operative”. The person has come into the witness box and is professing not to remember things and the evidence, “I don’t remember” – a statement by a witness saying, “I don’t remember what happened” is evidence that you would describe as neutral, I suppose?

MR ODGERS:   Yes.

GLEESON CJ:   But, a desire to challenge that evidence can arise out of a desire to demonstrate that in truth the person does remember and what the person remembers is supportive of the prosecution case.

MR ODGERS:   Yes, and so when you have the witness in the witness box and he says, “I do not remember”.  You seek leave to cross‑examine and you get the leave, and you say, “Well you do remember, do you not?”, and you put leading and suggestive questions and hopefully he concedes that eventually he does remember, and where you are using a prior inconsistent statement, you would achieve the result by saying – not the “don’t remember” situation, but say where he says something which is different from what you expect, you would say to him, “Well, you have said different things on other occasions, have you not?”  Now, at that point he might just simply roll over and say, “Yes, I am sorry, the truth is different.”  The point I am seeking to make is, it is not part of this process to give thought to the hearsay use of the out-of-court statement.  The whole purpose of the exercise is to challenge, contradict the in-court testimony.

HAYNE J:   I say to you quite plainly, Mr Odgers, I just do not follow what you are telling me.

MR ODGERS:   Can I draw an analogy ‑ ‑ ‑

HAYNE J:   It seems to me to be in an unreal, theoretical world so divorced from the trial that any proceeding that I have ever presided in as to bear no relationship to anything.

MR ODGERS:   Your Honour, can I bear an analogy to Graham’s Case.  In Graham’s Case this Court had to consider whether or not leave should be granted under section 108 to permit evidence to be led of a prior consistent statement and the Court considered how a court should approach that grant of leave and the Court explicitly stated that in determining whether or not to grant leave under 108, it is not appropriate to take into account the reliability or the hearsay significance of the prior consistent statement.  What you consider is, does the prior consistent statement tend to support the credibility of the witness?  The argument I am advancing here is analogous.  It is not appropriate when considering a grant of leave under 38, to consider how reliable is this hearsay statement? What is relevant is to consider, does this statement tend to challenge or contradict the testimony of the witness?

GAUDRON J:   Well, that was satisfied in this case; there is no doubt about that.

MR ODGERS:   Plainly.

GAUDRON J:   Yes.

MR ODGERS:   The point I am making is, that in granting leave you do not take into account the reliability of the statement.

GAUDRON J:   Well, for the third time, I suppose I have asked you, what you do take into account.  On your submission, what do you take into account?

MR ODGERS:   You take into account its tendency to discredit the witness.  You take into account a whole range of other factors, the ones that your Honour has referred to, fairness, the time it will extend the trial, and a range of other matters.

HAYNE J:   Including the importance of the evidence in relation to which leave is sought.

MR ODGERS:   Yes, but my submission is “importance” under 192 must be understood in the context of section 38 and in the context of 38 it is not importance for a hearsay use that can be taken into account.  It is not appropriate when exercising the discretion under 38 to take into account the potential hearsay use that might be made of the statement.  I do not know if I can make it any clearer than that.

GAUDRON J:   Well, I would have thought that ultimately what you had to think about in a case such as the present was the fairness of the trial process.

MR ODGERS:   Certainly.

GAUDRON J:   Now, do you say anything about the consequences for the trial process of the course that was adopted in this case?

MR ODGERS:   I do, your Honour, and, as I have said, I will get to that in one moment if your Honour would bear with me.  I have advanced the second argument, which is that it was an error in discretion to take into account the factor of reliability.  That argument that I have advanced orally goes beyond the arguments that I advanced in writing.

GAUDRON J:   Would it have been wrong to take into account unreliability?

MR ODGERS:   Yes.  Your Honours, this argument goes beyond the arguments I have advanced in paragraph (c) on page 15 of the written submissions.  I was not so bold as to advance then the argument I am now advancing.  Your Honours will see in the written submissions that I said there that it was wrong to find that it was reliable because it was consistent with other witnesses.  I have also submitted there that it was wrong to compare the out-of-court statement with the in-court testimony and to say one is more reliable than the other, because, of course, as your Honour Justice Gaudron pointed out on the last occasion, both may be unreliable.  I have also referred in paragraph (g) to reasons for doubting reliability.

I will just make it very clear what I am saying is that my primary submission is none of those matters should have been taken into account, in any event, because it is not relevant to take into account reliability.  If your Honours are against me on that ‑ ‑ ‑

GAUDRON J:   Or unreliability.

MR ODGERS:   Or unreliability.  But if your Honours are against me on that, I say that his Honour failed to take into account the matters which went to unreliability.  Before I get to the fairness point, there is one third proposition which I want to advance.  Both of the arguments I have advanced so far, in my respectful submission, are supported by section 38(3).  Section 38(3) says:

The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.

In this case the trial judge granted leave under both 38(1) and 38(3).  Plainly enough, leave under 38(3) to cross‑examine about matters relevant only to a witness’ credibility suggests, in my submission, that it is not, in exercising that leave - discretion, it is not appropriate to take into account matters bearing on the hearsay use of the out‑of‑court statement.

Your Honours, can I remind you of the definition of “prior inconsistent statement”.  That is defined in the dictionary to mean – that is the dictionary to the Act, of course:

prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness –

so that means previous representation inconsistent with testimony given by the witness.  Inconsistency diminishes credibility.  That is a very different thing from looking at the reliability of the out‑of‑court statement.  So again we say that this supports the conclusion that it is an error to take into account the hearsay use for the purposes of granting leave under 38(3) and also the assumption behind 38(3) is that the purpose of cross‑examination is to attack credibility.  If the real purpose of the whole exercise is a hearsay use, then it is not appropriate to grant leave, we say, and that is again restating the first argument.

GLEESON CJ:   Subsection (3) is an additional permission that may be obtained from the trial judge.

MR ODGERS:   Yes, your Honour.  It is required.  I mean, if the evidence is relevant only to credibility, then you are required ‑ ‑ ‑

GLEESON CJ:   To get another grant of leave.

MR ODGERS:   - - - to get another grant of leave.  That will bring me happily to the question that your Honour Justice Gaudron has raised about the question of fairness and we submit that his Honour erred in holding that there was no unfairness.

GLEESON CJ:   Where do we find that holding?

MR ODGERS:   At page 1079 in volume 5.

GAUDRON J:   But you do say that is relevant?

MR ODGERS:   Absolutely.

GAUDRON J:   Yes, and that is the only thing that his Honour took into account that was relevant.

MR ODGERS:   No, there are other matters he took into account which we concede were relevant.  I am just attacking the discretion by saying he failed to take into account something that was relevant and he also took into account some matters which were irrelevant.  In this context, I am submitting that he erred in saying that there would not be any unfairness.  Your Honours will see at line 50 on page 1079 he said he would not grant leave unless he was satisfied:

that it would not be unfair to the accused ‑ ‑ ‑

GLEESON CJ:  

by reason of an inability to test his evidence - - -

MR ODGERS:   Yes –

to grant leave –

and he also said at page 1083 in recounting - your Honours will recall that he regarded the arguments of the Crown as persuasive and the eighth argument of the Crown at line 40 on 1083 is that:

the accused will not experience any unfairness, since the witness has not taken the lack of memory line seen in GAC and Lozano.

So, he found that persuasive, that because the witness, Sako, was not asserting lack of memory but rather asserting that he was simply recounting what other people had told him, which is essentially what he was saying, that there was no unfairness.

HAYNE J:   No, that is not what his Honour said at all.  At 1083, his Honour, in the adoption of this eighth point, that eighth point had three elements:  not . . .  lack of memory”, “likely to” give evidence-in-chief “contradictory of the prosecution case and favourable to the accused”, third, likely to assist the accused in cross‑examination.  There are three elements in that point.

MR ODGERS:   I stand corrected, your Honour.  Of course, I am not sure if this is relevant, but in GAC which is a case which, no doubt, the respondent will rely on, the Court of Criminal Appeal of New South Wales held in a case where the witness in that case asserted lack of memory, the court held that – I am paraphrasing – but held that there was no relevant unfairness in –

GLEESON CJ:   Selective lack of memory, actually.

MR ODGERS:   Well, that is right, that is important, your Honour, because, of course, in that case, as it transpired, the witness remembered - his memory came back when he was being cross‑examined by the defence and in GAC the evidence he gave - well, I do not know whether it was contradictory of the prosecution case, it was certainly favourable to the accused and he did assert lack of memory, but, as I have said, his memory came back and the court held that there was no relevant unfairness.        I should also point out, of course, importantly in GAC, the statement was made three days after the event.  So, plainly, GAC was a case where section 66 operated.  The evidence was admissible pursuant to that provision.

GLEESON CJ:   It was a case where a young person had been involved in a violent assault by a group of young people on a homeless man and one of the young people attended the police with a parent and gave an interview two or three days later.  When he came to trial, he professed not to be able to remember some of the things adverse to his friends that he had said in the interview.

MR ODGERS:   Yes, and after leave was given, it turned out that his memory came back.  In all the circumstances, a Court of Criminal Appeal – and I do not challenge the correctness of the decision – held that it was within the judge’s discretion to grant leave, but I do submit that his Honour concluded, for whatever reason, that there would not be any relevant unfairness in granting leave, and that is the proposition, the finding that we challenge.

Given that Sako’s testimony was that what he told the police was what he had been told by others - he was not asserting lack of memory - it was very hard for the defence to challenge the version of events he gave to the police because he simply would say every time that he was asked about what he said to the police, his response would be, “Well, I am just passing on what other people told me”.  The defence was put in the situation where it would have to try to defend his relatively implausible account that he just did not see anybody or certainly did not identify anybody and support the truthfulness of his account that he lied to the police.

Alternatively, the defence would have to try to say, “Well, everything he says is lies, both when he told it to the police and what he has told you in the witness box, except when he has told you that he lied to the police”.  If I could give an example of the problems it created for the defence in this case.  As I have said, his blanket response to every question is – take this example.  He told the police he saw the appellant holding something and it striking Carty.  He is cross‑examined about that and he says, “No, I didn’t see that and the reason I told the police that was because I was just passing on what somebody told me”.

That meant that the defence was simply unable to cross‑examine him about the details of what he has told the police, that he saw the accused holding something.  If his testimony had been, “Well, yes, I saw it”, then you could question him about when he saw it, where he was standing at the time, how he saw it, “Describe the thing that you saw him holding?  What was your condition at the time you saw it?  Had you been stabbed?  Where were you sitting?  Why did you look in that direction, given you had been stabbed?”, a whole series of detailed cross‑examination could take place in order to challenge that assertion that he saw the appellant holding something at the time of the attack on David Carty.

None of that was possible in circumstances where he simply says, “I was just telling – I am passing on what somebody else told me”.  If the jury does not believe that, then there is nothing to challenge the reliability of the out‑of‑court assertion.  It is not possible for the defence to challenge it.  So, in my submission, that is good example of ‑ ‑ ‑

GLEESON CJ:   Well, that depends on what line the defence is taking, does it not?  I am not sure that you have yet told us what was the defence case.

MR ODGERS:   I think the primary defence case was that he was not there, he was not in the vicinity at the time David Carty was attacked.  Sako was cross‑examined to suggest to him that he was lying, generally.

GLEESON CJ:   I am not sure what you mean by “generally”.

MR ODGERS:   I am not sure, either.

GLEESON CJ:   Do you mean out of habit, or ‑ ‑ ‑

MR ODGERS:   It was put to him that he was lying when he said he could not remember and any more than what he claimed – yes, I think that is right, that Sako gave what many would regard as an implausible account, “I didn’t see anything”.  All right.

GLEESON CJ:   But we can really only judge this question of unfairness in the light of some understanding of what line the defence were taking.  The defence – and I suppose that line had been revealed in the cross‑examination of other witnesses – we were two months into the trial by the time this decision was made.  So the defence case was that the accused simply was not a participant and was not even there at the time of the attack on David Carty. 

MR ODGERS:   Yes, your Honour.  But I would go on to say that of course, one must – the practical reality of a criminal trial is that the defence recognises that a jury may not accept that, and may conclude that he was present, but that still leaves the next question of whether or not he was criminally liable.

GLEESON CJ:   I understand that, but when you start talking about unfairness you start to get embarrassingly close to the merits. 

MR ODGERS:   Yes. 

GLEESON CJ:   And that is why I was interested to know what the defence case actually was. 

MR ODGERS:   Yes, I understand that, your Honour.  The appellant is not in as strong a position on this argument as if his position had been,  “Well, yes I was in the vicinity but I did not strike David Carty, and I certainly did not strike him with anything”.  I concede that that was not the defence case, explicitly, but I nonetheless make the submission that, given that it must be part of the defence case at the end of the day that, “Even if you are satisfied beyond reasonable doubt, ladies and gentlemen of the jury, that I was present, you would still have a reasonable doubt as whether I was involved in the fatal attack.”  At that stage of the exercise, the significance to be given to Thaier Sako’s out-of-court representations becomes very plain. 

GLEESON CJ:   The line that is going to be pursued in cross-examination is dictated by the nature of the defence case, even though, in final address, counsel might want to be relying on the onus of proof in all the circumstances. 

MR ODGERS:   Certainly.  But of course, even given the defence case that he was not present, it would be entirely predictable that if Sako had gone in the witness box and said “I saw the appellant strike David Carty with something”, you would want to cross-examine that in great detail, if only for the reason of showing that that assertion lacked credibility, which would have a flow-on effect to his general credibility. 

HAYNE J:   Can I just understand this unfairness that you assert.  It is not being able to cross-examine the witness along the lines that “You were drunk, you were injured, therefore you could have no memory”.  Is that the unfairness asserted? 

MR ODGERS:   The first aspect of the unfairness is, and the critical central aspect is, the difficulties in cross-examining about his assertions made to the police.

HAYNE J:   Yes.  Well, it is that I want to tease out with you, Mr Odgers, because let me tell you where I am going so that you can deal with it directly.  It seems to me that the unfairness you assert is the defence could not cross-examine this man on the line, “You were drunk and injured and therefore could not have told the police what you did in the detail you purported to”, but how is that inconsistent with his evidence at trial, “I was simply retelling what others had told me”?  Why were you barred from running the line, listen ‑ ‑ ‑

MR ODGERS:   No, no, your Honour I think that the problem is, how does the defence deal with a situation where the jury does not believe him when he says that he was just repeating what others had told him?  What if the jury thinks – and this is entirely plausible – that he was lying about that and that, in fact, he was giving an account which was not based on what others had told him.  Of course, that did not make it necessarily reliable.  I mean, it could be that his account ‑ ‑ ‑

HAYNE J:   No, you wanted to challenge him saying, “You were so drunk and so badly injured, et cetera, that you could not remember”.

MR ODGERS:   No, I do not think so; that was not really the nub of it.  The nub of it had to be, “You had the strongest possible motive to exculpate yourself, exculpate your family and to implicate the accused”.

HAYNE J:   Well, what is wrong with running that line just as much with this witness?

MR ODGERS:   Well, I think you can run the line, but you cannot support it by cross‑examination as to the details of what he told the police.

GLEESON CJ:   But one thing the defence did not want to do was put to him some alternative version of the accused’s participation in the events, because that was inconsistent with the defence case.

MR ODGERS:   I accept that.  It would not be put to him, for example, “Well, I put to you that the accused was there, but he was not striking David Carty or that I put to you that he was there, but he didn’t have anything in his hand”.  That would not have been asked in cross‑examination in any circumstances, but I maintain the submission that it would have been asked if it could have been, “We are going to go in detail through what you say you told the police, that is, where you were, what you were doing at the time you told the police” – I am sorry, I take that back.  If his testimony had been, “I saw the appellant holding something and attacking the accused”, you could engage in very vigorous and detailed cross‑examination about that without being inconsistent with your defence case.  Do your Honours appreciate that point?

Mr Waterstreet kindly says to me that it was all set out in what his Honour said at page 1080 in the points from line 40 onwards, in which he summarised the arguments which were advanced by Mr Waterstreet on behalf of the accused in relation to the question of leave under section 38 and, of course, we rely here on those arguments as well as the arguments that have been advanced so far.

KIRBY J:   Is this last point a new trial point?  There does not seem to be an argument about the proviso.

MR ODGERS:   It is only a new trial argument.  There is no submission that conviction is unsafe or unreasonable.  I have no doubt the Crown will make a proviso argument and I will deal with that when it comes up.  Perhaps I should just say one thing about that.  I anticipate the argument is that even if his Honour erred in discretion, that the only proper exercise of discretion would be to grant leave and my submission, obviously, is to the contrary, but I do not think I will say anything more about that at this stage.

KIRBY J:   Can you think of a case where a discretion has been exercised by a judge where there are arguments, one way and another, where this Court has intervened, given that there must be many such discretions exercised every day, in every criminal trial?

MR ODGERS:   No, off the top of my head, no, your Honour, I am sorry.  My understanding of the relevant principle was that if - well, Stanoevski (2000) 177 ALR 285, of course, was a case where this Court looked at a grant of leave under section 112 of the Evidence Act and looked at 192, and the trial judge there erred in discretion because he failed to take into account certain factors which he was required to take into account, and this Court held that, in those circumstances, it would order a new trial because the discretion had miscarried. 

Really, your Honours, there is only one other point that I need to make and it is the fifth oral argument as to why his Honour erred in discretion.  It is spelt out really in paragraph 5.28(f) in the written submissions.  I withdraw that, that is not what I was referring to, or perhaps it is.  Sorry, your Honours, I will just remind myself ‑ ‑ ‑

GAUDRON J:   Did you want to say something further about (d)?

MR ODGERS:   I withdraw (d) because there was evidence, as I have said, that Sako had David Carty’s blood on him.  I was misled by a transcript reference which seemed to suggest that but I was corrected by the respondent.  This is page 15, (d) on page 15, your Honour?

GAUDRON J:   Yes.

MR ODGERS:   Yes.  No, I withdraw that.  In respect of (f), the submission we make here is that we draw an analogy to those common law cases which discourage the Crown from calling a possible accomplice until any inducement to giving false evidence is removed and the relevant cases are summarised at paragraphs 5.25 and 5.26 of the written submissions.

We submit that it was a strong factor in this case favouring a refusal of leave that the out‑of‑court statement made by Thaier Sako was made at a time when he had been charged with murder, as had his brother, had the strongest possible motive to fabricate evidence against the appellant and that that inducement existed right throughout the time that he made these out‑of‑court statements.

GAUDRON J:   Was that, in fact, put to his Honour?

MR ODGERS:   Yes, I think it was.

GAUDRON J:   At page - - -?

MR ODGERS:   It was, the top of page 1080, at the bottom of ‑ ‑ ‑

GAUDRON J:   Page 1080.

MR ODGERS:   Mr Waterstreet is moving around.  It was put as a relevant consideration.

GAUDRON J:   I would just like to know in what way it was put.

MR ODGERS:   Yes.

GAUDRON J:   I see there, there is a reference:

the interest the witness had in protecting himself and his brother –

MR ODGERS:   Yes, that seems to be the ‑ ‑ ‑

GAUDRON J:   What did his Honour say about that?

MR ODGERS:   He did not say anything.  What his Honour said was that he would take into account all of these factors raised by the defence, he had taken into account all these factors raised by the Crown and then his conclusions are to be found at 1085 going over to 1086.

GAUDRON J:   Now, I have another question.  His Honour then says at the bottom of 1085, 1086:

Any concern as to the reliability of their evidence can be countered by appropriate directions and warnings –

MR ODGERS:   Yes.

GAUDRON J:   What warnings were given?  What directions and warnings were given in this area?

MR ODGERS:   Your Honour, I will find out precisely where it is to be found in the summing up, but certain directions were given pursuant to section 165 of the Evidence Act.

GAUDRON J:   Now, do you say that they were adequate to deal with the problem or not?

MR ODGERS:   No.

GAUDRON J:   You say that for the first time today, I take it, otherwise you would have been able to answer my question?

MR ODGERS:   Your Honour, it goes without saying that our submission is that those directions could not remove the prejudice caused to the appellant and the unfairness created.

GAUDRON J:   I am not too sure that prejudice is the right way to look at this.  I think, at the end of the day, you have to look and say, “Was there a possibility that the jury might give this evidence weight that it did not deserve?”.

MR ODGERS:   I would accept that that would be a relevant consideration in the exercise of the grant of leave but I would not concede that that would be the ultimate question.

GAUDRON J:   But it might be the ultimate question in terms of whether or not it could be adequately dealt with by way of directions.

MR ODGERS:   I accept that, your Honour, that when one is considering the question of whether or not there was a danger that the jury would give too much weight to what Sako said to the police, that that consideration, if it was relevant to the grant of leave under 38 – and your Honour will appreciate I have said it is not relevant to the grant of leave under 38 – but if it is relevant to the grant of leave under 38, then it must follow that the effectiveness, or the likely effectiveness of any warnings about the evidence would bear on that issue.  I accept that.

GAUDRON J:   It is a matter for you but for my part I would want to know what those directions were to see for myself whether, as the trial judge said, any problems with respect to reliability, and ultimately it is reliability, I guess, could be countered by appropriate directions.

MR ODGERS:   Yes.  Your Honour, I do not want to make submissions, not having them in front of me.  Can I deal with that in reply?  Would the Court be prepared for me to deal with it then?

GLEESON CJ:   Yes, certainly.

MR ODGERS:   Yes, thank you.  Your Honours, unless I have got anything further to add, those are the appellant’s submissions.

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

MR BLACKMORE:   Your Honours, in our submission, what this case involved was an exercise of discretion by his Honour under section 38.  It may be that I have misunderstood what my friend said, but in argument this morning – in fact, it may be this afternoon – he indicated that when a witness answered, “I don’t remember”, it would be permissible to put to him words to the effect, “I put it to you you do remember”, having got leave.  The crux of much of his argument, though, swings on that proposition.  He runs an argument based on section 103 in relation to substantial probative value.

We suggest that the evidence given by Sako was neutral.  The evidence, as your Honour the Chief Justice pointed out, “I don’t remember”, is neutral, in his terms.  It may not, in fact, be neutral but in his terms it is neutral; it is not our argument.

How, then, does one make the cross-examination in those circumstances comply with 103?  With respect, his argument is internally inconsistent.

Section 38, in our submission, is dealing with - and if your Honours have a look at the terms of it - in our submission, it is dealing with “unfavourable to the party”.  That is a party’s case.  What has to be asserted and what has to be looked at is the evidence before the Court in its totality, including the evidence given by this witness.

What I propose to do, very briefly, is to go through the actual evidence that was before the Court which identified the fact that Thaier Sako was present, observed by other witnesses to be present, with Constable Carty.  I will not take a lot of time over this, because, in fact, we have in the interim time checked the summary of the evidence given by the Court of Criminal Appeal, in fact, in furtherance a question asked by your Honour the Chief Justice on the last occasion and, in our submission, it is an accurate summary.  It is one that could be adopted.  We have checked the transcripts to that summary.

In particular, before this decision was made under section 38, his Honour had before him important evidence from Oshana, from Bakos, and also from Constable Auld, who was Constable Carty’s partner.  It is our principal submission in relation to this that each of those witnesses taken in combination identified the fact that Sako was present, placed him with others in front of Constable Carty.  Each of those witnesses was called prior to this decision on section 38.

GAUDRON J:   Placed him in front of, did you say?

MR BLACKMORE:   In the presence of.  I cannot say “in front of”.  Some of them talked about him moving in front of others.  Oshana talked about him moving in front of others to have his say, which is what the evidence was, but in very close proximity to Constable Carty at this time, at the time that Constable Carty was initially stabbed.

In our submission, the blood evidence in that circumstance itself is also not neutral.  It is, perhaps, capable of the inference that my friend puts on it that somewhere along the way blood transferred in these ways, but there were two separate pieces of evidence in relation to the blood.  The first was that there was blood from Carty on Thaier Sako, and, secondly, there was blood from Sako, or at least consistent with Sako’s blood, on Carty.

When taken in combination with all of the other evidence in the case, that was itself a very significant piece of circumstantial evidence.     The evidence of Constable Auld is summarised at paragraph 17 in the Court of Criminal Appeal’s decision, which is in volume 7 at appeal book 1623:

Constable Auld gave evidence that as she was moving towards her car she saw a man (“the first man”) –

in our submission, the preponderance of the evidence was that was Sako –

walk past the car door and approach Carty.  Carty was still standing beside his white utility truck.  The driver-side door was open and the engine was running.  Auld saw the first man speak to Carty, and saw Carty reply.  During the exchange some eight to ten men of Arabic appearance approached Carty and formed themselves into a semi‑circle around him.  Auld’s evidence was that the exchange between Carty and the first man became somewhat heated.  Some of the other men seemed to Auld to become involved in the altercation.  She saw the first man step towards Carty and push him.  Carty stumbled and pushed the first man back.  The other men moved closer towards Carty and the first man.  She then observed a look of horror on Carty’s face, and saw blood spurting from his chest.

Further evidence was given in the trial and is summarised in paragraph 18, again, by two witnesses, Tony Bakos and Dennis Oshana.  Tony Bakos, the summary states is:

Tony Bakos, who, with Dennis Oshana, was at this time standing outside the tavern door, heard sounds of an argument coming from the car park, and gave evidence to the effect that he saw Carty pushing Thaier Sako –

in our submission, the jury could have accepted this evidence –

Dennis Oshana also heard the argument.  His evidence was that some of the young men who approached Carty stayed about five metres away from Carty, while others were within about one metre.  Oshana further testified that Edward Esho, Gilbert Adam and James George were among those who were about one metre away from Carty.  Thaier Sako was in the vicinity, and kept moving around in an attempt (according to Oshana) to ‘have his say’.

With respect, that was the evidence that his Honour had before him when he came to address the question as to whether or not the evidence in this case was unfavourable.  The issue arose ‑ ‑ ‑

GAUDRON J:   Did his Honour have to address that question for the purposes of section 38? 

MR BLACKMORE:   Did he have to – I am sorry, I just missed that, your Honour. 

GAUDRON J:   Did his Honour have to find the evidence was unfavourable? 

MR BLACKMORE:   Yes, I think that would be correct, your Honour. 

GAUDRON J:   No. 

MR BLACKMORE:   I am sorry, your Honour? 

GAUDRON J:   Would it not be sufficient that he had made a prior inconsistent statement? 

MR BLACKMORE:   I am sorry, your Honour.  Yes, he made various findings of fact.  He found on (a), (b) and (c). 

GAUDRON J:   Yes. 

MR BLACKMORE:   So he did in fact make a finding under (a), but also made it under (b) and under (c).  One of the ‑ ‑ ‑

GAUDRON J:   Yes.  I would have thought the (b) and (c) findings were somewhat easier than the (a) finding. 

MR BLACKMORE:   Yes.  And, with respect, the fallacy we would say in the argument of the appellant here, in relation to 38, which flows through the rest of his interpretation of these provisions, can be demonstrated by (b) alone.  I think, as your Honour the Chief Justice pointed out, there would be occasions when, clearly, the witness is not being very helpful, but his evidence, on its face, taken objectively, without looking at any other evidence, would simply be neutral.  It would not take the Crown case or the defence case anywhere.  But, with respect, that cannot be the intent and purpose behind this legislation, otherwise (b) almost has no circumstances, no operation. 

In relation to subsection (3):  subsection (3) deals with obtaining leave in relation to credit only, and your Honours will see there is a note in the Act, and it is actually in the Act below, saying “The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7”.  Clearly, if leave is not given under section 3, those rules will be important.  The note therefore is not necessarily irrelevant.  In our submission, though, it is not determinative of anything, other than directing people in that direction if leave is not granted.  The note itself does not form part of the Act - that is in section 3 of the Act itself – as is the fact that the Australian Law Commission reports themselves are to be use in the interpretation of the section to the Act.  I notice the time.  Does your Honour wish me to proceed?

GLEESON CJ:   All right.  We will adjourn until 2.15. 

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ:   Yes, Mr Blackmore.

MR BLACKMORE:   Thank you, your Honour.  Perhaps just before I pass from the facts, there was one other piece of evidence I wanted to draw the Court’s attention to, and that was at appeal book No 3, page 646.  There is the evidence again of Mr Oshana, about point 15 on the page.  This is evidence he is giving of the confrontation as he sees it in the carpark:

Q.  Did you see Gilbert intervening with Thaier, saying “wait, wait”, pushing him back?
A.  Oh, that time.  Yeah, he was moving Thaier at one stage and then Thaier was moving him, that’s right, yeah.

Q.  So Gilbert did say, “wait, wait?”
A.  Oh yeah, he did say “wait”.

Q.  You haven’t given that evidence before here?
A.  Well, because I didn’t say “wait?”

Q.  Yeah.
A.  I put it in different words.

Q.  What were the other words?
A.  What were the other words, because Gibby was running in front of him.

Q. I beg your pardon?
A.  Gibby was moving Thaier and moving in front of Thaier and then Thaier would move in front of him.

I will not read the rest of it.  The gist of the evidence there is that Oshana was giving evidence of the participation of both Gibby and Thaier in the initial phases of this confrontation – I will not say it is an attack at this point.

KIRBY J:   The suggestion is – at least it is open to the suggestion that the appellant was moving in front of Thaier and trying to get him to wait.

MR BLACKMORE:   Yes.  The relevant point that I seek to make, they were both there, at that time, and that Thaier was at the commencement of this altercation, and there was evidence before the judge which, if the jury accepted it, would be accepted as that fact.  Therefore, we make the submission that evidence of Thaier that touched on that was going to be relevant.  This was material that was in the Crown case already before the judge.

If I can say, the chronology of the matter – and I do not propose to go through it all – but continues at book 5, on page 870.  Towards the bottom of the page on page 870 there is an exchange between the Bench, Mr Waterstreet and the Crown Prosecutor.  The Crown Prosecutor is recorded as saying:

No, I have two ERISPs and the prison officer’s statement.  I am trying to arrange a conference with him –

and this is talking about Thaier –

but this is something that I didn’t intend to do at the start of the trial but, after certain evidence of Bakos, I told my friends that I was looking at the question of calling Thaier Sako.  That is all I have at the moment and I would be seeking to examine him on what he said in his ERISP interview.

This is to, in a sense, address the point that was being made by Justice Hayne, that trials are fluid entities, in a sense, that things do not stay static from the beginning to the end.  What had happened in this case was that evidence had been given by Mr Bakos, which was not particularly helpful, in re‑examination and he had backed away from some of his evidence.  Given that, Thaier’s evidence, if it could be said to be evidence in the ERISP, perhaps had a heightened importance.  Just at the bottom of the page his Honour then suggests:

One way of handling it again, I think it entirely appropriate that there be a Basha type inquiry.

WATERSTREET:  We would like the opportunity to subpoena the documents.

That was a reference, I believe, to documents that were in the possession of the Crown, notes of the conference with Thaier Sako.  His Honour then grants leave to issue subpoenas.  I withdraw that.  I withdraw that, it was not those documents.  It was some other documents.  There was later a subpoena in relation to those notes, but in any case, at line 10 there is this point made by Mr Waterstreet in response to his Honour where he says:

I think so.  It is a serious matter because he is at the heart of it.

With respect, it is a direct recognition by the parties that Thaier Sako’s evidence was at the heart of the material before the court.  The judge says:

He is one person, if he told the truth, who could, I suppose, in everybody’s interest, establish what did happen.

That is reflective of what was in his mind when he came to consider whether or not this evidence should be put before the court. Sako was, in fact, called. This is reflected at page 901, again at book No 5.

HAYNE J:   Just before you go to 901, as to what was happening in the voir dire, it would seem at 872 line 35 that his Honour was telling trial counsel for the appellant that he was entitled to have a Basha inquiry in relation, I take it, to Thaier Sako.  Is that what I understand from line 35 and following at 872?

MR BLACKMORE:   I believe that is correct.  The one on Monday was the Thaier Sako one.  Yes, your Honour.  There were other inquiries in this trial.

HAYNE J:   Yes.

MR BLACKMORE:   But the one on Monday was, in fact, that one and, in fact, I think if we turn to 901 – I may be incorrect about this – in fact, I am.  It is on the Wednesday, the 25th.  The voir dire commences upon page 901 where the witness is called.  I will not trouble the Court by reading all of it, or even a very large slab of it.  Perhaps I could just go to page 909 in the examination‑in‑chief by the Crown.  This is before any declaration of unfavourability or a declaration in relation to inconsistent ‑ ‑ ‑

GAUDRON J:   This is not the Basha Inquiry?

MR BLACKMORE:   This is in the Basha Inquiry itself, in the voir dire.

GLEESON CJ:   This is in the Basha Inquiry?

MR BLACKMORE:   Yes.  At about line 35 the Crown Prosecutor is asking questions.

GAUDRON J:   I am sorry, what page?

MR BLACKMORE:   Page 909 in appeal book No 5, at about line 35 or 36:

What did you do after you left the hotel door?

I am just trying now to focus on the very issue that is at hand:

What did you do after you left the hotel door?
A  When I went outside, outside, there was someone standing there, he was standing next in his car, I saw somebody there.  There was another girl, she was a woman, she was starting the car.

Q  Yes?
A  I went and said, “What’s wrong”.  He then started swearing to me.  I said, “What’s wrong with you?”  And then he tried to talk to me in obscene language, you know.  He grab me from neck, then I push him, then I felt something, I had a pain or something and I fell on the ground and then when I got up I saw blood coming through my neck.

Q  Was there anybody else standing near you when you were speaking with this man?
A  No, I didn’t see no one.

Q  Did you see Gibby in the parking lot when you were speaking with the policeman?

There was an objection in relation to “the policeman”.

When you were speaking with that man, who was next to the man, did you see Gibby?
A  No.

Q  Did you see Eddie Esho?
A  No.

There was a judgment given by his Honour in the book at 916 in relation to section 38 with respect to the voir dire itself.  His Honour concludes on page 916:

In substance, he has asserted that he alone was engaged in an argument with Constable Carty and did not see anyone in his near vicinity at the time he sustained a neck wound.  This version of events is totally at odds with the account he gave to police which placed Gilbert Adam, Eddie Esho, Bashar Hurmiz and Adwar Toma in the near vicinity of David Carty, suggested that the argument was initially between Constable Carty and Adam and Esho, and described them as physically assaulting him.

He then proceeds to grant leave, having considered section 192.  He says:

I cannot see any unfairness, either to the witness or to the accused, in granting leave, in this phase of the proceedings.

In the voir dire obviously.  He is then further cross‑examined and maintains his position that he was told.  I do not dispute what was said by my friend in relation to this, that he was told, in essence, by other people what was said by his cousin and by his father.

At the conclusion of his evidence, the question was, in our submission, whether or not section 38 should be applied.  In considering that it was necessary to consider section 192.  If anything that Stanoevski  tells us, it is that, that each time you consider a question of leave, it is necessary to go to section 192 and consider the matters that are outlined there.  The error in Stanoevski was as much an error of law in failure not to address that as it was an error of discretion.

In our submission, when considering section 38, as I submitted earlier, the question is whether or not the evidence is, and just to use a general phrase, unfavourable to the party and, with respect, to the party’s case.  We would submit that it is relevant at that point to look at the whole of the case.  We accept the issue in this case, the fact in issue, was the one identified by the appellant, that is, the complicity or implication of the appellant in the assault of Carty.  The other parts of the section that are relevant include subsection (6) and subsection (6) says:

Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave –

Now, again, there is a byplay there between the suggestion that the Crown is involved in some sort of subterfuge in this case.  I do not think that is precisely what the appellant means when he uses the word “subterfuge”.  “Subterfuge” suggests, to my mind at least, that something was being hidden.  Whatever you could say about the Crown here, nothing was being hidden from anybody.  The Crown was completely open in relation to what it intended and what it wanted to do.

Might I just divert at this point to go to the report, that is, volume 1 of the Australian Law Reform Commission Report No 26, which was the first report ‑ ‑ ‑

GLEESON CJ:   The interim report. 

MR BLACKMORE:   The interim report.  Again, there are a number of passages in here that are relevant, but in particular I just want to take the Court to the proposal in relation to what was called hostile witnesses.  This is at paragraph 625 on page 345.  At 625, it says: 

Hostile Witness – Proposal.  It is proposed that the law relating to ‘hostile’ witness be abrogated.  The criticisms of the law, and the absence of any satisfactory rationale justifies this course.  Further, the need for accurate fact finding and considerations of fairness justify allowing a party to test by cross-examination that part of a witness’ testimony that is unfavourable to the case of the party whether the witness was called by the party or not.  If the party does not test such evidence it is likely that no one will. 

And we pause here.  This was exactly the circumstance in this case.  Exactly.  It was clear that the appellant would not call this evidence in his case.  And therefore, arguably, on the objective evidence, a person who was at the very scene, at the very heart of it – said by the appellant’s counsel at trial ‑ would not be called unless the Crown called this witness: 

The proposals may also encourage parties to call witnesses, often the most credible available.  The major danger with such an approach is that it may add to the time and cost of litigation.  Several factors minimise this danger –

It is just the first one in particular that I wanted to read: 

Decision to call Witness.  Parties will generally know what evidence a witness wishes to give –

It is a recognition that, at that stage, parties will know whether or not their witness is hostile – to use that phrase –

If they can avoid it, they will not call a witness whose evidence is unfavourable on important points –

for obvious reasons –

While the proposal would make it less dangerous for a party to call such a witness, a party will still be reluctant to do so.  It is unlikely that it will call such a witness –

but this is the key phrase –

unless the evidence he can give supporting the case is important and that which does not is unimportant, or can be successfully challenged. 

There is, with respect, contrary to what appellant submitted this morning, an express recognition in the report that there will be occasions, perhaps, rare, that this will be required; that this will have to happen.  It is not, with respect, a question of focusing on the Crown Prosecutor’s motives in calling the witness.  Here there was objective circumstances which justified the approach that was taken.

I could divert and talk about Blewitt.  Blewitt was about improper purposes.  The principle in Blewitt still stands, with respect, in the sense that if the Crown Prosecutor has an improper purpose to admit evidence into a court, then that evidence will be excluded, and, perhaps, it will involve a miscarriage of justice, as the Court said.  If, for example – well, I do not say this ever happened but if, for example, a plan was to tendered to the judge and he said, “I will not admit this plan,” but the Crown Prosecutor walks past jury holding the plan up, that would be an example of an attempt to get inadmissible evidence before the Court, and could well, if not stopped there and then, involve a miscarriage of justice.

The principle in Blewitt applies.  Why it does not apply here is because there was nothing improper in the approach taken.  There is nothing improper in attempting to get this evidence before the Court legally.  With respect, this is also supported by Lee’s Case (1998) 195 CLR 594. Perhaps I need to go to this. I reading from page 597 at paragraph 7, where it is made clear that before the Crown called Mr Calin in that case, they were aware that he was a, for want of a better term, hostile witness. The Crown does, as rightly predicted by the appellant, rely strongly upon the reading in Lee’s Case, in particular, paragraphs 26 and 29, but I will come back to those.

The report is making it clear that, generally speaking, it is not going to be helpful to call a witness who is going to be adverse to your case, but it allows that to happen in circumstances in particular where that evidence might otherwise not be called and that is important.  It would be, with respect, to the facts in this case hard to argue that this was not extremely important evidence potentially.  I have added “potentially” on the end because there are issues in relation to reliability which I cannot simply duck; they do have to be addressed.  But allowing that the evidence could be found to be sufficiently reliable, this evidence should have been before the jury.

Finally - perhaps, I have diverted a little bit to talk about Crown’s duties – but in the report, the final report No 38, at paragraph 114 on page 64 – I do not really need to take your Honours to it but there is an expressed recognition of the fact that the Crown will on occasion have an extra duty in relation to witnesses and Apostilides is specifically referred to in the footnote there.  The question for Australian Law Reform Commission at that point was should there be extra rules for the Crown, but it decided to try and draft such extra rules or different rules for the Crown would be so complex that it would not have suited the circumstances.  It noted that the Crown is still a party to the proceedings, and, therefore, recommended the report in the way in which it had been originally drafted.

We submit that looking at the material that the judge had to address, he had the ERISP, the electronic recording which was on the video, which was, itself, in our submission, quite significant because it would allow the judge to see and the jury, if it was shown to the jury, the demeanour of the witness.  It allowed them to see the way in which he responded to the material that was put to him by the police.  Was it spontaneous, was it hesitant?  Remember, that what was now being suggested in his evidence was that he had been told all these things.  The ERISP was extremely long, and quite detailed.  So the proposition was or was being put that he was able to remember all these things and repeat them at will for the police.

Going to section 192, which his Honour specifically considered.  In section 192(1) it is noted that:

If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

In fact, in this case, his Honour did provide a restriction in relation to leave.  He insisted that another witness, which was not a witness the Crown intended to call, because they did not accept that his evidence was truthful, he insisted that if they wanted leave they had to call that witness.  Ultimately, that witness was called and ultimately again, the Crown cross‑examined that witness.  But in particular, going to (2) there are a set of matters that have to be taken into account by the judge.

The one that was emphasised by the appellant to the judge was (b):

the extent to which to do so would be unfair to a party or to a witness‑

In our submission, in considering that, his Honour needed to consider a number of factors.  He clearly needed to consider the admissibility of the evidence; if it was not admissible, then it should not have gone before the court.  In a sense that becomes a discretionary matter even though it is a question of law.

GAUDRON J:   Well, it does not really?

MR BLACKMORE:   No, it is a question of law which would knock it out at that point.  There are two issues with respect to that:  firstly, there is the question of the reliability of the prior inconsistent account.  If that itself was not reliable then that could raise an issue under section 55.  There was no issue of that here and obviously there could not have been, given the fact that it was an ERISP interview.  The other issue in relation to section 55 was the one that arises under section 60.  I will come back to that because, because the operation of section 60 is determined by whether or not the evidence is admitted in some other fashion, logically it is necessary to proceed on through the Act before you arrive at section 60.

Clearly by proceeding on to section 56, which says:

Relevant evidence to be admissible –

subject to other provisions in the Act.  The other provisions in the Act that were relevant to the manner in which this evidence was suggested to be relevant was section 59 and section 102.  If the Crown was putting the evidence forward or tendering the evidence for a hearsay purpose – for a shorthand way of addressing it – and section 59 was relevant, clearly, we would submit in this case, that was the case.  There were questions asked of this witness about his direct evidence and those questions, for example, and I may have to go to them, but, for example, there were questions of the witness in his examination such as, “Did Carty have a knife; was Carty armed in some fashion?”; there was a series of questions along that way.

They were direct questions of the facts in issue.  Clearly we also submit that the evidence was relevant to credibility.  The question as to whether or not, in this case, a dual purpose, which is what we have argued for in the written submissions, is strictly necessary.  If I can just put that argument aside for the moment, we would submit and we do submit that even if one goes to section 103, through 102 to 103, because we have to avoid 102, that under any circumstance the judge here would have found substantial probative value.

We make the submission that, firstly, in no sense could his actual evidence in court be said to be neutral.  His evidence was that he did not see anybody else in the near vicinity when he himself received a knife wound.  That was highly relevant to the facts in issue in the case.  There was other evidence in the case was clear that that was the very time that Carty received a knife wound.

HAYNE J:   But neutrality of evidence is something that seems to me that can be assessed only at the conclusion of the witness’ evidence.  This decision is a decision that must be made in the course of the witness’ evidence.  It may be contrary to experience that a witness confronted with a prior inconsistent statement turns around and says, “Oh, look I am sorry, the earlier version is right”, but that is at least a possibility and you cannot know where this evidence is going to come out until the witness steps down from the box.

MR BLACKMORE:   Correct.  As a practical matter that most always will be right.  Here, there was the earlier voir dire which everybody assumed would be replicated in the trial.  That may be the case in most cases, but it may not be.  I accept what your Honour says, that there would be many cases where there would be a surprise, as it were, unfavourable statement made, and the application of section 38 in those circumstances would be as your Honour puts it.

HAYNE J:   Counsel being surprised by evidence the witness gives is not an uncommon experience to the courts.

MR BLACKMORE:   Whether it, in fact, involves the step of making the witness unfavourable is perhaps a different issue.  Here, though, we have the voir dire and, in a sense, that exposed the totality of his evidence and, as it turned out, that was pretty much the evidence that he gave in the trial.  The question though about substantial probative value, I suspect, is not limited in the manner in which the appellant suggests, simply to the evidence of this witness.  Nor is it limited, in our submission, in the way in which it is suggested here to what is said to be a fact in issue.  Just going to the dictionary definition of “probative value” shows that that is not correct, with respect.

What is said in the definition is “assessment . . . of a fact in issue”.  Clearly, an assessment of a fact in issue itself could involve a decision as to the reliability of the evidence and the credibility of the evidence.  But, with respect, we do not say that is the way it should be interpreted.  We adopt what Justice Hunt said in RPS, which is a case that has been referred to your Honours.  It is on page 29 of that case.  It is an unreported decision of New South Wales Court of Criminal Appeal dated 13 August 1997.  Your Honours will recall that this case came to the High Court but on a different issue and this issue did not arise.

I merely point out this argument.  I do not think I could put it in any better way than has been put by his Honour Justice Hunt in this case.  On the last occasion your Honour the Chief Justice indicated that section 6 had the meaning ascribed to it by Justice Hunt in this passage.  The context of the legislative provision here, the part here, is credibility.  It is dealing with exceptions to evidence which is relevant only to credibility.

In our submission, it is clear that the import of the substantial probative value relates to credibility.  This is really an aside, it is not a case on the list, but Justice McHugh in a case called Palmer has considered the distinction between credit and fact in issue and said that often it is very blurred.  It is sometimes very difficult to know where one commences and the other.  This Act, in a sense, tries to make it a very black‑and‑white line.  In our submission, though, in this case it is clear the substantial probative value relates to credibility and that is clear from the provisions themselves of the Act, just in section 103(2)(a), for example:

whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth –

Does it have substantial probative value in relation to that?  Well, with respect, if he has given a prior inconsistent statement, it does.

In a case that was added recently to the respondent’s list of authorities, McLellan v Bowyer (1960) 106 CLR 95 at 103. The passage is really stating the common law, but it is an observation about both relevance and, in our submission, about the substantial probative value. About point 5 on the page it commences:

In some of the cases there seems to be implicit the notion that leave may be granted when the party calling the witness is, by reason of the earlier statement, entitled to assume that the witness will, upon being called, testify in accordance with his statement.  This, of course, tends to treat the character and circumstances of the earlier statement as a matter of vital importance and we mention it because it was pointed out in argument that the statement of Bowyer junior was not made to the respondent or his representative.  Consequently it is asserted that in the circumstances it was not calculated to, and that it did not, in fact, mislead the respondent.

It is really the next passage that is relevant:

But although it must be conceded that not every witness who testifies inconsistently with an earlier statement can properly be regarded as hostile, or adverse, it is clear that the existence of an earlier inconsistent statement, in whatever circumstances it may have been made, will always be a material matter and, when taken into consideration with other features of the case, may furnish grounds for concluding that the witness is hostile.

I trust that I have made the submission that, whichever interpretation is placed upon section 103, that the evidence here satisfied that criteria, whether, in fact, it is to a fact in issue or whether or not it is in relation to credibility or both.

If admissible under section 103, and leaving aside the dual purpose argument, in our submission, section 60 merely operates as a matter of law to admit the ERISP.  I come back, now, to remind the Court that we are really at this stage dealing with questions of discretion, matters that a judge has to take into consideration before admitting the evidence.  In this case a matter that would be taken into consideration was the way in which this evidence might be used.  If section 60 operates in that way then the evidence might be used – would be used as evidence of the facts stated in the ERISP.

GLEESON CJ:   I have not checked this but in the Law Reform Commission’s report when they were dealing with questions of policy, did they explain why you should need leave to cross‑examine a witness?  Did they explain why counsel should not be able to cross‑examine any witness any time, whether called by that party or the other party?

MR BLACKMORE:   There is a passage.  I can find it for your Honour.  I would not like to paraphrase because it is ‑ ‑ ‑

GLEESON CJ:   You can come back to it.

MR BLACKMORE:   The answer is, “Yes, there is a passage” and I will find it.

GLEESON CJ:   Thank you.

MR BLACKMORE:   I think my junior may have found it.

GLEESON CJ:   Just a reference will do.

MR BLACKMORE:   Yes.  It is again in paragraph 625 which was the paragraph that I referred to earlier.

GLEESON CJ:   Thank you.

MR BLACKMORE:   That is in volume 1, again, of the interim report.  Coming back then to section 60, section 60, in our submission, operates to allow this evidence to be admitted, as it were, for the truth of the statements made in the ERISP.  His Honour would have to consider that operation as part of considering section 192.  In this case he did.  In this case he clearly said and applied an unreported decision of the Court of Criminal Appeal of GAC and went on to consider all the matters put to him by the defence and by the Crown at appeal book 1079 to 1080.  Those are the factors that I have been through already.

He said that he considered the first account to be reliable and he in fact said that he had to ask himself the question of whether or not it was reliable.  In our submission, that was the issue that section 60 went to.  He had to decide what this evidence could be used for, what use it could be put to and whether or not that could be unfair, in the circumstances of the case, to any party.

Section 192 does not indicate the accused; it says “to any party”.  That may include the Crown in this case.  Section 192(2)(b) says:

the extent to which to do so would be unfair to a party or to a witness –

Now, if I might go to his Honour’s judgment which is in appeal book No 5. Just on this issue, going to appeal book 1075, there is a series of passages where he considers the use to which this evidence might be put. He said at the top of the page:

The Crown is now placed in a similar position to that which arose in GAC . . . In anticipation of Thaier Sako giving evidence in similar terms to that given upon the voir dire, if called in the trial, the Crown seeks leave, in advance under S 38 of the Evidence Act, to cross examine him.  If leave is given and if the terms of the previous representations in the ERISP are established under S 66, then it will seek to rely upon those earlier representations under S 60 as proof of the facts intended to be there asserted.

I would have to concede his reference there to section 66, I think was probably a reference back to GAC because in GAC the evidence was admitted under section 66.  His Honour clearly had section 66 in mind in this judgment, though, but makes no final finding in relation to it, that much I must concede.

GLEESON CJ:   Say that again, please.

MR BLACKMORE:   His Honour has in mind section 66 in this judgment, but makes no final finding in relation to it.

GLEESON CJ:   You mean on freshness?

MR BLACKMORE:   Yes.  He does not specifically say either that the evidence is fresh or that, “I am admitting the evidence under section 66 of the Evidence Act”.

GLEESON CJ:   Well, he did not admit it under section 66, did he?

MR BLACKMORE:   No, no.

GLEESON CJ:   Because he did not need to get to that.

MR BLACKMORE:   Yes, that was our submission, yes.  The next bit addresses the Crown’s position:

Since it is the Crown assessment that the witness is not now telling the truth, it would not call him at all in the trial unless leave is given, and unless the evidence of the prior representations is allowed to go in as proof of the facts asserted.  It would not advance the case at all for the Crown to call the witness to say one thing, and then to neutralise that by an attack on his credibility, through cross examination on his prior inconsistent statements.  Its forensic purpose in calling him would be to get into evidence the substance of what he said in the ERISPs, as proof of the facts there asserted.

There is no subterfuge here.  This was clearly – for everybody, this was clearly what his Honour had in mind: 

I observe that this is a course that could not have been contemplated before introduction of the Evidence Act –

He quotes from this Court’s decision in Lee –

The Courts have positively discouraged the Crown from calling a witness known in advance to be hostile, for the sole purpose of obtaining a declaration to that effect, and of placing before a jury a prior inconsistent statement which would be inadmissible to prove the facts asserted in it:  Blewitt, (1988) 80 ALR 503.

It is now permissible, with leave, to cross examine a witness who has given an out of court statement that is inconsistent with his evidence, and to use the statement if shown to have been made, as a matter going to proof of any fact that the person speaking out of court intended to assert by it –

In fact, I think – it has just been pointed out, at page 1076 there is a quote from a case, GAC, which is said to be from his Honour Justice Hunt; in fact, it was your Honour the Chief Justice at the time, who wrote that judgment. 

GLEESON CJ:   Yes, I had noticed that.  I was waiting to see how things went before I ‑ ‑ ‑

MR BLACKMORE:   There are passages that are relevant in GAC, in particular.  We rely upon this statement as being very similar.  GAC is an unreported decision of the New South Wales Court of Criminal Appeal, dated 19 December 1996.  On page 17, about point 5, there is the issue in relation to cross-examination, which is really another discretionary point.  I am sorry, it was delivered on 1 April 1997.  The observations of the court there, with respect, are exactly the same observations that can be made in this case. 

GAUDRON J:   There is an assumption, though, in that, is there not?  It is assuming that he was telling the truth before though he is lying now.  It is at least plausible in this case, is it not, that given his own situation and his brother’s situation, he made up a story in the ERISP?  I mean, that is at least plausible. 

MR BLACKMORE:   It would have to be accepted that there was that possibility. 

GAUDRON J:   And once you get to - whether he made it up or repeated what he was told does not really matter ‑ ‑ ‑

MR BLACKMORE:   Yes.  Well, in a sense, it does, but ‑ ‑ ‑

GAUDRON J:   Does it?  I mean ‑ ‑ ‑

MR BLACKMORE:   One is a positive assertion of what he said was fact, which was not fact.  If he made it up, it was just untrue. 

GAUDRON J:   Yes. 

HAYNE J:   But the judge drew all these things to the attention of the jury at 1484 and following, did he not? 

MR BLACKMORE:   Correct, your Honour.  Yes, I was going to go to those.  And there were very strong directions about that.  Our principal submission in relation to this aspect – and of course, your Honour is right.  When there are two versions, it does not really make any of them necessarily the truth, any more than if someone gets into the witness box and has two different versions at different occasions.  It does not make them necessarily the truth. 

GAUDRON J:   But it does not seem to me to be universally correct to say, as is said at page 17 in GAC, “Well, the most that can be said is that he could not be effectively cross-examined because he was anxious to help the defence.”  I mean, there may be other ‑ ‑ ‑

MR BLACKMORE:   Yes, I do not suggest there could be other cases out there.

GAUDRON J:   Yes, and on one view this could be one of them.

MR BLACKMORE:   Our submission is to the contrary of that, given the facts that took place and the manner of the cross‑examination and the manner of the ERISP, that clearly here he was doing what he could, as it were.  Really it is the last sentence, “Using his best endeavours”, which were not very effective, “to assist the defence case or at least to avoid as far as possible saying anything harmful to the accused.”

GAUDRON J:   Or perhaps to avoid admitting that he had, in fact, made it up, on an earlier occasion.

MR BLACKMORE:   Yes.

GAUDRON J:   I mean the man, after all, held an indemnity.

MR BLACKMORE:   Yes, and he had a 128 certificate which, in effect, was an indemnity in that proceeding, a use indemnity.  So he had no reason to fear saying the truth in that proceeding.

GAUDRON J:   A lot of people do not like admitting that they made things up, for whatever reason.

MR BLACKMORE:   Of course, but each of these matters, your Honour, with respect, as they are with all assessment of witnesses, is a matter for the jury.  The jury are told at the end of the day they can accept some of the evidence and reject some of the evidence or they can accept all of the evidence or reject all of the evidence.  The question is whether or not the evidence of itself is sufficiently reliable so that the jury should at least have it to consider.  That really comes back to the crux of the matter, that here was an interview which took place a relatively short time after a very serious incident, in which he was injured, which of itself meant that he was not going to be able to be interviewed for some time, he was in hospital.  He proposed to the police that he come forward and give an ERISP eight weeks after the events.  He gives a very detailed account.  It must be accepted that it was partly in his interests to do so.

GLEESON CJ:   May I ask you, how long was he in hospital?

MR BLACKMORE:   At least two weeks, your Honour.  He was moved out of Liverpool Hospital and put into the Long Bay Hospital.  It is not exactly clear from the transcript, your Honour, exactly how long he was in hospital.  He was very seriously injured, there was no doubt about that.  I realise that, of itself, is something that had to be taken into consideration, as well, by the trial judge, on the reliability issue, but when you come to look at the circumstances of the event itself, clearly a very serious event, the most serious event that ever took place in his life, without any doubt.  He had made this statement 10 weeks later, he gave a great deal of detail in it, his later proposition that he was somehow told this material, I think everybody accepts is just almost beyond belief.

GLEESON CJ:   I was going to ask you in relation to that matter of detail, if it becomes necessary to decide this, in determining whether or not occurrences are fresh in somebody’s mind, does the amount of detail, which the person professes to be able to give about the event throw any light on its freshness?  In other words, are you entitled to judge freshness, not only in terms of lapse of time, but also in terms of apparent power of detailed recall?  The reason I asked that question was because there might be lapses of time – and we may be confronted with one here – about which you would say, “Well it may or may not be fresh”.  If it had happened after three days, of course it would be fresh; if it had happened after three years, it would not be fresh, although it may be vivid.  But it happened after 10 weeks ‑ ‑ ‑

MR BLACKMORE:   There are shades of grey.

GLEESON CJ:    ‑ ‑ ‑it may or may not be fresh and one thing that might help you decide whether it is fresh is the apparent detail with which it can be recalled.

MR BLACKMORE:   There are shades of grey.

GLEESON CJ:   It may or may not be fresh and one thing that might help you decide whether it is fresh is the apparent detail with which it can be recalled.

KIRBY J:   Is not the difficulty of that, that scientific research tends to show that people – and this comes up also in identity evidence – can have the absolute clearest impression and can give very detailed recall and yet, objectively, it is shown that they are wrong.  They have had cases where somebody is rushed into a law lecture and then they put them to the test at different intervals afterwards, and people can give very detailed statements and it just happens to be wrong, objectively.  I mean, this is the problem ‑ ‑ ‑

MR BLACKMORE:   Clearly, both are true.  Generally speaking, the latter are cases where there is a limited amount of detail provided.  Here, one can test, to a certain extent, by just the number and amount of the detail provided.  Either he has elaborated on it to an extreme degree, or he is making it up, or has just made a continuous series of mistakes.  The other question is:  to what extent can you look objectively at other factors to determine freshness?  For example, if after 10 weeks, his account, he says – let us assume that he does say, he does not say in this case, but let us assume he does say, “Yes, I remember that very clearly”, accords very clearly with what other people say and maybe was objective evidence.

What if there was a video, for example, of the scene outside the hotel, if his evidence accorded very closely with that?  Now, that issue has not been, with respect, decided by Graham.  Graham was a case about the facts in its case and there were general indications in that case about what generally would be regarded as freshness.

KIRBY J:   Well, six years ‑ ‑ ‑

MR BLACKMORE:   Six years was way out of the ballpark, yes.

GAUDRON J:   But we would only have to decide that here, would we not, if the arguments about section 60 were accepted?

MR BLACKMORE:   Yes.

GAUDRON J:   But you are using “freshness” for a different purpose here, are you not?  You are saying, “Well, it was within a relatively short time”.

MR BLACKMORE:   We are not adopting the phrase “freshness” as a determinant of reliability here.

GAUDRON J:   No, and it has a degree of detail which corresponds with the other evidence and you can, therefore ‑ ‑ ‑

GLEESON CJ:   For the purposes of your argument, “recency” would do as a word.

GAUDRON J:   Yes.

MR BLACKMORE:   “Recency” is enough.  There is nothing in section 60 and, really, the question for the judge is, “Am I satisfied it is sufficiently reliable to leave as a version to the jury?”, vis a vis the other version that is already there, and the other versions from other witnesses as well.  It is a question whether or not it is going to sufficiently add to the case one way or the other and, equally, whether or not it is going to be unfair – on the other side, unfair to a party, if it is left in that way.  Can it be tested, for example?

We make, in essence, the submission that is made in the judgment in JC in respect of that, that there were things you could test about this evidence.  There were limitations about the way you could test it that must be accepted, but there were certainly things you could test.  You could test things like his recall of the night, how much he had had to drink, other things that were favourable to the conclusion that he perhaps did not have a good recollection of the night.  Clearly there were things you were not going to be able to test as well, and my friend has addressed on those and I do not really need to elaborate on them.

At the end of the day, the question is:  did his Honour take all of those factors into account?  Without going through and enumerating them one by one, in our submission, he was extremely thorough.  Given that there had not been an enormous amount of guidance at that stage about how this would be applied, he was thoughtful; he went to 192, unlike some other people, perhaps; went to 192; went through the matters in 192; listened to the appellant’s argument, enumerated them, carefully considered them; placed the bar very high, in our submission, saying that it had to be very reliable before he would put it in or allow it to go in ‑ ‑ ‑

GAUDRON J:   Well, did he?  He said had high probative value?

MR BLACKMORE:   He did not use the term “substantial probative value” as such.

GAUDRON J:   No.  What term did he use?  Could you remind me?  Because the difficulty I have in this case, Mr Blackmore, is in saying it is reliable and at the same time acknowledging that there would need to be substantial warnings because the experience of the courts is that people in the position of this witness often are not reliable.  I mean you concede there would have to be warnings?

MR BLACKMORE:   Yes, and there were warnings.

GAUDRON J:   And there were.  The reason for those warning is the potential unreliability.  So I have some difficulty with the notion you can say it was reliable.

MR BLACKMORE:   The phrase he used which was at 1079:

the probative value of the account given was significant and outweighed its prejudicial effect.

HAYNE J:   But there is the earlier statement:

the first account was more probably than not reliable.

MR BLACKMORE:   Yes.

GAUDRON J:   That is the difficulty I have about this way in which it is approached.

MR BLACKMORE:   And also the last account on 1085:

I have formed the conclusion that the version given in the ERISP more probably than not reflected his observations on the night.  It is consistent, and more in accordance with the balance of the evidence led in the trial, than that given on the voir dire.

There is another statement at 1080 on a similar topic.

On any view the account that the witness could give, if he tells the truth, is of critical importance in the trial.  He was an immediate witness to the first phase of the incident

GAUDRON J:   I have some difficulty with that approach.

MR BLACKMORE:   I understand your Honour’s difficulty.  Can I put this to you and maybe make it clearer.  Our submission is that witnesses who have potentially unreliable accounts give evidence every day.

KIRBY J:   Well, every day juries convict people on the evidence that witnesses about whom they have been given warning.

MR BLACKMORE:   Correct.  Accomplices are just a classic example.

GAUDRON J:   The problem I am having, though, is not really that.  The problem goes deeper.  It is whether his Honour really articulated the correct approach.  I would have thought, leaving aside the matters in 192 which seem to me to be very general matters, the question really would have been, does it have significant probative value in the sense that, if accepted - it has a rational tendency.  Certainly, it had a probative value in that sense, if accepted.  Then I would have thought that ultimately the question had to be something like, is there a risk that the jury will give this evidence greater weight than it deserves having regard to various matters in - - -

MR BLACKMORE:   It is not on oath in those factors.  Yes, I understand that.

GAUDRON J:   Yes, that is to say I think that ultimately the test may be something more akin to that than the exercise his Honour went through.

MR BLACKMORE:   With respect, we would submit that he has that in mind in this judgment and that ultimately his conclusion that it was more probable than not reflected his observations on the night.  These are very significant ‑ ‑ ‑

HAYNE J:   And to be joined with what his Honour says in the sentence running over 1085, 86:

Any concern as to the reliability of their evidence can be countered by appropriate directions –

presumably the directions which his Honour gave at 1484 to 1490.

MR BLACKMORE:   Correct, and he did give ‑ ‑ ‑

GAUDRON J:   And I think perhaps, at the end of the day, the question might be, although it has not been addressed, whether those directions were adequate because ‑ ‑ ‑

MR BLACKMORE:   Or perhaps sufficient to give it in terms of warning.

GAUDRON J:   Yes, because ultimately one is looking to see whether there has been a miscarriage of justice.

MR BLACKMORE:   Of course.

HAYNE J:   But the tension to which her Honour points, may – it may not, I do not know – be incapable of resolution, but if the judge begins the question of, “Do I grant leave if, but only if I, as a judge, am persuaded that more probably than not the earlier version is right.  But against that possibility that I am wrong, I am not the jury, I will tell the jury ‘Scrutinise the evidence with special care having regard to factors A to Z’.”

MR BLACKMORE:   Yes.

HAYNE J:   The outcome does end, I think, with a coherent outcome in which the question of acceptance or non‑acceptance of the evidence remains with the jury.

MR BLACKMORE:   Correct.

HAYNE J:   But they are not distracted by what otherwise would be a red herring because the judge has first set the bar at the point of saying, “Look, we won’t let them have any access to this material unless I, the judge, am persuaded more probably than not this is the true version of events”.

MR BLACKMORE:   I agree with what your Honour says about that.  There are a number of other observations about that as well in this case and he gave very strong directions in this case, which I can go to shortly, and he also limited the evidence in this case – sorry, not limited, but, as a matter of leave he decided that other evidence which touched upon the same issue should be admitted.  In addition to that – I am sorry, but the essence of our submission is to adopt what your Honour says.  It is a matter ultimately for the jury.  If his Honour concludes on the “more probably than not” test that he has applied that this is, in fact, what happened, really that is as much as he can do.

GAUDRON J:   I am just suggesting that his Honour does not have to go that far, really.

HAYNE J:   That he set the bar too high.

GAUDRON J:   Yes.

MR BLACKMORE:   Simply on the basis of relevance, yes.  He set the bar well too high.  The bar at that point could rationally affect.

HAYNE J:   But that may then depend on whether what is engaged is the fairness to discretion under 192.

MR BLACKMORE:   Correct.  You keep coming back to this is a 192 decision about fairness.

GAUDRON J:   But not just a fairness to the parties.

MR BLACKMORE:   To the witness, too.

GAUDRON J:   To the witness, but no, overall, whether at the end of the day directions can be given which ensure the fairness of the trial process, meaning specifically, thereby, in this instance, that there is no risk of the jury giving the evidence greater weight than it deserves or think it is more reliable than it might be and so forth.

MR BLACKMORE:   Yes.  The one thing I was going to mention and I forgot was the fact that he did not admit the ERISP here.

HAYNE J:   He did not send the video out with the jury.

MR BLACKMORE:   He did not send it to the jury.  He did not even show it to the jury, except in one very small portion and, with respect, that, on one version of it, was quite unfair to the Crown because in order to assess this witness now surely they would be entitled to see the demeanour of the witness when he delivers the account which could be going in as evidence of the truth because the way he delivered it would be extremely important and an extremely important matter for them to assess, whether or not they accepted that version.

His Honour did not let them see that version.  He only let the cross‑examination proceed which must have been, with respect, a fairly boring exercise for the jury because it was simply reading out transcript to them which ultimately just put them in a position to address at the end of the day.  It must have been difficult for the jury to – they would have heard the account but it meant they would not have seen the vivid account that would have been given by the witness on the ERISP and therefore the jury also did not have a copy of the ERISP so they could not perhaps misuse it by replaying it time and time again, or transcripts, I am prompted, of the ERISP at all, so that was a balancing issue as well in the trial, and then there were the strong directions.

The directions are at appeal book 7, page 1484 and following.  They were in strong terms, not only in terms of the warning but in terms of warning the jury about the evidence that this witness gave.  They commence at about line 35.  I will go back.  They start at about 19:

Let me go next to the two witnesses, Thaier Sako and Bashar Hurmiz, whose evidence was called only in relation to Gilbert Adam.  Thaier Sako, you will recall, gave evidence with an indemnity for all offences but murder, arising this night, and was given, by me, a certificate that would prevent any evidence that he gave here being used against him in any other prosecution.  The only exceptions, in each case are for perjury, that is, if he gave false evidence here then that indemnity would fall over, not be available to him, and also if he gave false evidence here, he could be prosecuted for perjury for giving that false evidence.

I will not read this, but then there is a strong direction, in our submission, about the witness, the circumstances of the witness.  Going over the page to line 22 he makes the point, with respect to your Honour Justice Gaudron that your Honour makes:

It may be he has never told the truth to anybody about this case, it may be he was telling the truth.  It is for you to determine.

So he makes that point for the jury to think, so that it is not a question of truth on truth or truth on untruth, but maybe he is just not telling the truth anywhere.

Then the next passage is important, the next two paragraphs are important on that:

You may also think in relation to him, he is a person who, apparently, carries a machete around with him and whom trouble accompanies.

Now this in contradistinction, when it was put right on that warning, these next two paragraphs are important in what weight the jury would give to this evidence and, in essence, he uses the words the evidence was “absolutely absurd”.  One might say that the end of the day the weight that the jury could use of his evidence, in any case, was relevantly minor.  One could say, then, why did he give evidence in the first place.  But on any objective fact, he was an eyewitness who was capable of giving an eyewitness account.

HAYNE J:   But the way the judge had described the significance of Sako’s evidence is at 1403, line 44 and following:

the Crown case here depends essentially upon you believing what Tony Bakos, Dennis Oshana and Mrs Salwa said here, and disbelieving any earlier inconsistent statements they made to police; as well as upon you disbelieving what Thaier Sako and Bashar Hurmiz  said here . . . and believing what they said on earlier occasions –

Sako’s evidence was seen by the judge, apparently, as critical to the Crown case.

MR BLACKMORE:   It was without doubt important to the Crown case.  There is a summary of the Crown case in the Crown’s submissions and it was one of the important factors in the Crown case.  The most important was Mrs Salwa’s evidence, but it was an important piece of evidence and could have been accepted by the jury.  I am merely pointing out that in this passage at 1485 is that ‑ ‑ ‑

GAUDRON J:   Perhaps even again his Honour set the bar a little too high. 

MR BLACKMORE:   He could well have, given – it is very strong language in relation to these witnesses.

GAUDRON J:   Yes, but it would not seem to me that that is correct, is it?  If they believe Bakos, Oshana and Mrs Salwa, that would be ample evidence on which to convict, would it not?

MR BLACKMORE:   It would, although there was an issue in relation to Mr Bakos’ evidence which is dealt with in the Court of Criminal Appeal which was the reason behind the prompting of the calling this witness in the first place.  But there was, in the Crown’s submission, Oshana, Mrs Salwa and other circumstantial pieces of evidence well and truly sufficient to convict here.

GAUDRON J:   They did not need to disbelieve what Sako said there?

MR BLACKMORE:   No, that was almost an irrelevant matter.  I mean, the fact is he may just simply not have been able to explain the reason very well that he had the machete.  This was all done through an interpreter.  He may well have been going fishing.  It just sounds ridiculous, but some things looked at in the light of day when there has been a murder look silly.  But it may be that he was just about to go fishing.

GLEESON CJ:   He might have been going to use it to scale a fish.  It does not matter.

MR BLACKMORE:   Sorry.  Anyway, I am not here to support his credibility on that basis.  I do point out also that his Honour considered the temporal relationship between the events in the ERISP, having a look at point 1 on page 1080, and 2, these are factors that he took into account, and I note - although obviously leave has been granted in this case - that ultimately the concession was made in the Court of Criminal Appeal that no discretionary error of discretion was shown by the appellant at that court level.

Here, in our submission, these are the factors, those are the factors that his Honour had to take into consideration under 192 before granting leave under section 38 and, in our submission, he properly took all of those factors into account and the Court of Criminal Appeal quite properly found that he had done so.

GAUDRON J:   Can I take you back to page 1484, though.  Is that the only passage in which the trial judge drew attention to his interest in the outcome of the proceedings? 

MR BLACKMORE:   Yes. 

HAYNE J:   Page 1416, I think, Mr Blackmore.  There may be others, but that is the only other one I can find, looking quickly. 

MR BLACKMORE:   I am indebted, your Honour, thank you. 

GAUDRON J:   Let us assume that – yes, I see that there – Mr Sako had not been a hostile witness, had in fact given evidence consistently with his record of interview.  Would that be sufficient warning?  On one view, he was an accomplice ‑ ‑ ‑

MR BLACKMORE:   Not of the perhaps murder, but of the initial – if there was an initial affray, he was involved in that affray. 

GAUDRON J:   No, he had been charged with murder.  Was that ‑ ‑ ‑

MR BLACKMORE:   He was charged with murder, yes. 

GAUDRON J:   Was that drawn to the jury’s attention? 

MR BLACKMORE:   Yes. 

GAUDRON J:   They knew that. 

MR BLACKMORE:   Yes. 

GAUDRON J:   That his brother had been charged with something? 

MR BLACKMORE:   Yes, your Honour.  I cannot point immediately to any particular point but I understand that was drawn to their attention.  It would have been, if nowhere else, in the evidence, I assume, of Mr Sako.  In the cross-examination of the witness.  I can find those passages, your Honour.  I think it may be worth finding them. 

GAUDRON J:   “Say he was clearly involved in some form of assault, in the initial stages, so that any version may have been slanted.”  I mean, I really would have thought you might need something a little stronger than that, in the circumstances of this case. 

MR BLACKMORE:   It does appear again on 1484:

approach with the greatest of care.  On any view he was a participant in the early stages of this event, with a consequence ‑ ‑ ‑

GAUDRON J:   It does not go on to say, you look for corroboration before you would accept it.

MR BLACKMORE:    Well, because, with respect, under section 164 of the Evidence Act, corroboration has been done away with, as a necessary anyway ‑ ‑ ‑

GAUDRON J:   Well, it may have been done away with as a necessary, but, nonetheless, it has not been done away with as an aspect of directions, has it?  I mean, one has to be alert to the possibility that the jury will give it greater weight than it might bear because of the possibility of concoction, you know, the possibility that he was never telling the truth.

MR BLACKMORE:   Well, he does make that point, with respect, and he also does draw out the fact that, on page 1484 again at line 45:

You should bear in mind . . . he was in custody, he was facing serious charges.

He may have:

had an interest  to protect either himself, his brother, or his friends.

These are the interests that your Honour is talking about.  He could have perhaps elaborated more on those things, but these were the matters that were before the jury.  It is just pointed out that at 1541, this is in regard to the defence case, when he was addressing the jury in relation to the defence case or summing up in relation to the defence case, at point 25:

He pointed out in this regard that Thaier Sako had himself been in Court that morning on charges relating to the assault of police, and had been called out by the police in the afternoon –

again, I know that these are not warnings as such; they are just pointing out the submissions made by counsel.  It goes on:

I add in that regard, if you do think other witnesses here who come from that group were involved in that kind of behaviour, you can also take that into account when you come to consider their credibility as witnesses, whether they are reliable, honest, truthful witnesses or not.

Obviously, if a person is of a bad background, criminal propensity and the like, they may be less likely to tell the truth than a person who is otherwise of good character, so you could take that into account when you come to consider Bakos, Oshana, Thaier, Hurmiz and so on – at least that group.

GAUDRON J:   What I am looking for, on one reading of 1484 and following, that is to invite the jury to disregard everything that Thaier Sako said in the witness box.  It is not to invite them, necessarily, to disregard what was in the ERISP; the matters about which he was cross‑examined.

MR BLACKMORE:   He does go on to say though, at 1485:

One of the accounts may be wholly correct, partially correct or everything they say might be totally incorrect.  That is for you to determine.  If, indeed, you reach the conclusion he was lying when he gave evidence here, it does not automatically follow, for the considerations I have just mentioned, that what ‑ ‑ ‑

GAUDRON J:   No, that is right.  That rather concerns my reading of it, that he might well have been lying there in court.

MR BLACKMORE:   Well, he goes on though to say:

It may be he has never told the truth to anybody about this case ‑ ‑ ‑

GAUDRON J:   Exactly.  But the question, it seems to me, ultimately, is the adequacy of the warnings that could be given with respect to the reliability of what was said on the ERISP, not the evidence given in court.

MR BLACKMORE:   Somebody should be checking again the - I will have to spend a little bit more time doing that than I can do on my feet.

GAUDRON J:   But you do accept that ultimately the question was whether his Honour could adequately give directions about the reliability of the ERISP material?

MR BLACKMORE:   That was a part of his reasoning, yes.

GAUDRON J:   Well, it was a substantial question.

MR BLACKMORE:   Yes, a substantial part of his reasoning that, yes, he had to put that against the admission of the evidence.

GAUDRON J:   The best way of seeing whether his Honour could or could not is having regard to what his Honour did.

MR BLACKMORE:   Certainly, and our submission about that – your Honour has heard our submission.

GAUDRON J:   Yes.

MR BLACKMORE:   We say it is sufficient in the circumstances.

HAYNE J:   The only material the jury had about the ERISP interviews was what was drawn out in cross-examination.

MR BLACKMORE:   Correct.

HAYNE J:   No transcript, no ‑ ‑ ‑

MR BLACKMORE:   It was not re-read to them, no transcript, no ERISP.  It will be in the amended chronology, but some time before the end of this trial too, so there would have been quite a period of time between having heard that material and the end of the trial.  Now, just briefly, in relation to other aspects of our submissions, in our written submissions at page 8, paragraph 26 through to 31, we make the argument that the Blewitt principle is not applicable in this case.  I think I have adequately addressed that, but we rely on those written submissions with respect to that.  In relation to the admissibility of the representation under section 66, and we only get to this issue if your Honours hold against us in terms of the admissibility ‑ ‑ ‑

GAUDRON J:   There is some difficulty about all of this.  If his Honour were not correct on that, then the ground of appeal should have been that the evidence was wrongly admitted.

MR BLACKMORE:   Yes, I agree with your Honour.  The ground of appeal that actually is before the Court is extraordinarily wide and imprecise in terms of what it actually is directed to.  It has made it somewhat difficult to address in the sense of, are we talking about the discretionary decision of his Honour?  Are we talking about the decision of the Court of Criminal Appeal?  Are we talking about the decision to admit the evidence?  But everyone has focused on the discretionary decision of his Honour and that is, I must say, where I have spent my time addressing.  The Court of Criminal Appeal ultimately held that that discretionary decision was a proper one, but I accept what your Honour says, that there – to put it to its logical conclusion, someone could have objected as soon as the cross-examination started.

GAUDRON J:   That is right.

MR BLACKMORE:   And said, “Well, I still object”, and put it on the record and say, “What is your objection?  Well, relevance, section 60, section 102, 103?”.  None of those objections were taken, obviously for reasons because those decisions, in a sense, have already been made by the judge.

With respect to section 66 – I note the time.  We are content to rely on the written submissions in that regard, to section 66.  We have addressed in detail each of the discretionary considerations in our written submissions from pages 11 through to 13 and we have also sought the application of the proviso in the event that your Honours were of the view that, for whatever reason, his Honour failed to adequately address the discretionary considerations.

KIRBY J:   Where is that addressed?  It is just a short paragraph, 43.

MR BLACKMORE:   It is a short submission, but in essence our submission is, in this case, given the evidence that was available in the ERISP, the importance of that evidence to the tribunal of fact, to the jury, that even if the Court found, for example, that his Honour had not sufficiently addressed section 103 - and we make submissions about that in the written submissions, that it was not necessary actually to state that he had addressed 103 but nearly that he had, in fact, taken, in effect, substantial probative value into account - if that was said to be in error, then we ask for the application of proviso in this case because no substantial miscarriage of justice is shown.

GAUDRON J:   You would not ask for the application of the proviso, though, if the decision rested on the view that proper directions could not be given or were not given.

MR BLACKMORE:   Could not be given, correct

GAUDRON J:   And also were not, in fact, given.

MR BLACKMORE:   Your Honour has our submission about that.  We do not accept that as a proposition but if they were not given it would be difficult to press the proviso, yes.

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

MR ODGERS:   Your Honours, the grounds of appeal were amended on the last occasion and I ‑ ‑ ‑

GLEESON CJ:   You added a ground (b) and you were refused leave to add ground (c).

MR ODGERS:   That is right, and ground (b), I think, went to the question of admissibility.  I am just addressing the point that Justice Gaudron raised a moment ago.  There are two grounds and one of them is that evidence of the out‑of‑court statements was wrongly admitted. 

GAUDRON J:   Yes, 2(a).  Is that the one you got leave on?

MR ODGERS:   I do not have the – unfortunately, I have been searching around for it, your Honour.

GAUDRON J:   Well, 2(b), I have the document, and the amended notice of appeal is 2(a).  It relates to error in admitting the evidence of Thaier Sako and (b) is granting leave under 38.

MR ODGERS:   Yes, so it is (a) and (b). 

GLEESON CJ:   You have (a) and (b) and you were refused leave on (c).

MR ODGERS:   Yes, your Honour.  I will go through some matters in the sequence that they were raised by the Crown.  The Crown referred to the evidence of Oshana, Bakos and Auld.  It is clear that all of those witnesses had major problems with them.  In the Court of Criminal Appeal Bakos’ evidence was described as unsatisfactory; that is at appeal book 1634.  Much of his evidence was withdrawn in re-examination; that is at appeal book 1495.  Oshana, the Court of Criminal Appeal described his evidence – “the general quality” of his evidence “was not high”; that is at 1634.  He was heavily cross-examined.  Arguments were advanced about problems with Mrs Salwa.  Arguments were advanced about the limited reliability of Constable Auld given the injuries he had suffered.

The point is, really, that it cannot be said that the evidence of Sako’s out‑of‑court statements was unimportant; it was plainly an important piece of evidence in this case.  At the end of the day, I do not think the Crown is suggesting to the contrary.  But in the Crown referring to Oshana, Bakos and Auld seemed to be for the purpose of showing that there was consistency between what Sako had said out of court to the police and what those witnesses had said.  I have made the submission, and I will repeat it, that, in our submission, that is not a basis for saying that Sako’s evidence is anything other than neutral.  At the end of the day, when he says in his testimony “I didn’t see anything”, our submission is that that does not hurt the Crown.

The respondent referred to section 38 and 38(1)(b) which is where the court is satisfied, the judge is satisfied the witness is not telling the whole truth.  We are not challenging the findings made by the judge that (a), (b), and (c) were satisfied; that is the one thing we are not challenging here.  Yes, it was open to the judge to say that the witness was unfavourable.  It was open to the judge to say that the witness was not telling the whole truth.  It was open to the judge to say that there was a prior inconsistent statement.  That is not challenged.

That is not challenged.  What is challenged is the grant of leave and what were necessary preconditions for that grant of leave, findings that the out‑of‑court statements were relevant for a hearsay use, the finding that the prior inconsistent statements were admissible under 103 and that in the exercise of a discretion it was appropriate to grant leave.  That is the area of the territory of attack, although I will come back to what Justice Gaudron said about the warnings in a minute.

The Crown read from paragraph 625 of the interim report and I just need to say something about that, if I could, briefly.  If I could just take your Honours very quickly to it.  He read at page 345 the first dot point:

Decision to call Witness.

He read out:

It is unlikely that it will call such a witness unless the evidence he can give supporting the case is important –

and he said, “Well, look, there is a reference there by the Law Reform Commission to the importance of the evidence” but the critical point is that it is the importance there of the evidence the witness gives not the importance of the out‑of‑court statement, and as I keep trying to stress, it is very necessary in this exercise to differentiate between the in‑court testimony and how you approach that and the out‑of‑court statement and what you can take into account about that for the purposes of, for example, granting leave.

There is nothing in that reference of the Law Reform Commission to the importance of the out‑of‑court court statement.  The next point is that the Crown referred to the fact that the judge told the Crown to call Hurmiz, “If you are going to get leave to call Sako you should call Hurmiz” and the respondent indicated that the Crown did not want to call Hurmiz because it did not accept that his evidence was truthful or reliable.

The fact of the matter is the Crown did not accept that Sako’s evidence was truthful or reliable.  The critical difference from the Crown’s point of view was that Sako had said things out of court to the police which the Crown wanted to rely on.  Hurmiz had not.  It was because they had that out-of-court statement, which they wanted to rely on for a hearsay purpose, that they called a witness who they regarded as unreliable.  And at no stage has the Crown ever suggested that his testimony was reliable - to the contrary. 

The Crown read from McLellan v Bowyer 106 CLR 103. There was a passage there which, in my submission, has no bearing on this case at all, but I should just take you to it briefly. About 10 lines from the bottom:

although it must be conceded that not every witness who testifies inconsistently with an earlier statement can properly be regarded as hostile, or adverse, it is clear that the existence of an earlier inconsistent statement, in whatever circumstances it may have been made, will always be a material matter and, when taken into consideration with other features of the case, may furnish grounds for concluding that the witness is hostile. 

With respect, that has nothing to do with this case.  Under the common law, you could not cross-examine until you found the witness was hostile, and it was relevant for that purpose to look at any prior inconsistent statement.  That is not the present law under the Evidence Act.  That statement has no bearing on this case.  Your Honour the Chief Justice asked the Crown about why the Law Reform Commission required leave for cross-examination about matters under 38 ‑ ‑ ‑

GLEESON CJ:   Why should not all witnesses not be cross-examined by both counsel? 

MR ODGERS:   No, your Honour, the point is, the general rule is that you cannot cross-examine your own witness. 

GLEESON CJ:   Yes, but why? 

MR ODGERS:   Why is that the general rule?

GLEESON CJ:   Yes.

MR ODGERS:   Because of the concern that your own witness will essentially agree with whatever you say to them.  That is the reason for no leading questions ‑ ‑ ‑

GLEESON CJ:   That is not a concern in a case like Mr Sako, is it? 

MR ODGERS:   No, I understand that, your Honour.  The common law dealt with the problem by saying you have to find that he is hostile before you allow the cross-examination.  The Evidence Act says it is enough that he has made a prior inconsistent statement but, to safeguard against any problems, we impose an additional leave requirement.  They imposed a leave requirement in respect of credibility as well.  And that is discussed not only in the interim report, but in the final report at paragraph 114. 

HAYNE J:   Does your argument necessarily assume that cross‑examination by reference to a prior inconsistent statement will have no effect on what the witness says thereafter in evidence?

MR ODGERS:   No, your Honour.  Plainly enough, the purpose of section 38, as I said before, is, at the very least, to permit a party who calls a witness to test and challenge unfavourable aspects of the witness’ testimony.  Now, I have conceded that Sako’s evidence was unfavourable in that sense, at the very least he did not help – I have said it was neutral, but I am prepared to concede that it did not go as far as they hoped it would go.  If he had stuck to his statement to the police it would have been much more helpful.  So they were entitled, under 38, if they got leave, to challenge that, and it may have been that, in the process of challenging it, he would have said, “All right, I fess up; what I told the police is true.”  Of course, the advantage of holding the voir dire was to find out what he was likely to do, but I accept that that is what 38 is about, to challenge and give the party that calls the witness a chance to really test the witness.

But the point I was trying to make – and I do not think I had any success in persuading members of the Court – was that that has got to be the critical consideration in terms of granting leave.  I maintain the submission that it is not appropriate to take into account the likely reliability of the out‑of‑court statement for a hearsay use as a justification for granting leave under 38.  I think that will be the last thing I come back to and I will come back to that in a minute or two.

Your Honour Justice Gaudron has raised this question of the directions, the warning, and it is apparent, of course, that we maintain the submission that we do not need to rely on that.  We have maintained the submission that it was inadmissible.  It was not relevant, we say, for a hearsay use so we say we win on that basis.

If we fail on that we say it did not meet the test in 103 so we win on that basis.  If we fail on that we say that leave should not have been granted for all the reasons that have been discussed but I accept the correctness of what your Honour says, that a relevant factor in determining whether or not to grant leave is whether or not any warnings can cure unfairness or potential unfairness and so we respectfully endorse that proposition, although we say we do not need to rely on it.

GAUDRON J:   Do you rely on it, or not?

MR ODGERS:   Of course, your Honour, but that is not our primary submission.  In respect of the grant of leave, we submit that the directions that were given at 1484 and 1485 were not sufficient to cure potential unfairness.  Those directions did not refer to a number of matters.  They did not refer to the fact that the practical inability of the appellant to cross‑examine - and I have dealt with that - did not mention that to the jury as a factor that they should take into account in weighing up the reliability of the out‑of‑court statements.

GLEESON CJ:   Which ground of appeal does this go to?

MR ODGERS:   It goes to the question of whether or not leave should have been granted because the argument is that a reason for granting leave is that any unfairness can be cured by warnings.  If the warnings are inadequate then they do not cure the unfairness and that is a reason for not granting leave.  The warnings did not refer to the opportunity that Sako had to concoct his account in the 10 weeks before he spoke to the police, the fact that he had contact with various people including his own solicitor who had taken Bakos and Oshana to the authorities.  There is no reference to the fact that Sako was stabbed at the time and drunk, so a number of matters not referred to.

The second point, this Court said in Crampton that warnings generally, in accordance with the principles in Longman, need to go beyond saying, “Well, scrutinise with care”.  This direction was at 1484, scrutinise “with care”.  We say that it should have gone further and said that it was dangerous.

KIRBY J:   But are you not now getting into a challenge to the warnings which is excluded.

MR ODGERS:   I understand that that can be put against me and I understand that was the gravamen of what the Chief Justice was putting to me, but it is related back again to the question of whether or not leave should have been granted.  If, in fact, inadequate ‑ ‑ ‑

GAUDRON J:   It was whether his Honour was correct in saying in the grant of leave that any potential unfairness could be cured by directions.

MR ODGERS:   Yes.

GLEESON CJ:   What you have to do is say these warnings were the best that could possibly have been given and the fact that they were the best that could possibly be given demonstrates that leave should not have been granted.

MR ODGERS:   I was going to go on and say that the next proposition, which was that even the best possible warnings in the world could not cure unfairness, and the basic point about that is that, at the end of the day, a warning cannot overcome the difficulties for the defence that it experienced in cross-examining Sako.  The point I have made several times that the defence was facing an insuperable task in adequately or properly testing Sako’s out-of-court account, given the circumstances of the case, and that is really the primary matter we raise as being something that could not be cured by whatever warning was given.

Can I make one last attempt – I see the time – to advance the argument I advanced before that it is not proper for a judge in granting leave to take into account the perceived reliability or probative value of the out‑of‑court statement for a hearsay use.  In Graham’s Case it was recognised that in granting leave to adduce evidence of a prior consistent statement under that provision, you should only consider its tendency to show consistency and support credibility and it is not relevant to consider a hearsay use.

We say that that is applicable in this situation.  But, this case raises an extended difficulty and the difficulty is this, even assuming you approach it correctly in the way we have suggested you should, assuming what I have said is correct, a judge might say, “Right, well, I am not permitted to conclude that it is highly reliable and that is a good reason for granting leave.  I cannot do that”.  That is correct.  Then the defence says, “But, any way, even approaching it properly, your Honour, you should take into account the possible risk of unfairness”.  “Why?”  “Because if you let it in on the proper basis section 60 will operate and it will be available for hearsay use unless the discretion under 136 is utilised”.

We say the defendant might argue, “And that use which will be permissible is, in the circumstances, a dangerous one because the evidence is highly unreliable for a hearsay use”.  At that point that would be a good reason for refusing leave.  Now, at that point the Crown might say, “Well, that is not legitimate, in fact it is highly reliable, you can properly cross‑examine and you can give proper warnings”.  That would negate the unfairness argument.  It would negate the factor of unfairness which is referred to in 192, but you cannot – and I know this is a technical point – but you cannot use reliability positively.

It might be that it will negate an unfairness argument but I maintain the submission that it is not legitimate for a Crown to rely on reliability for a hearsay use as a positive reason for letting it in, granting leave under 38, and it is not legitimate for a trial judge to rely on that assessment of reliability to grant leave under 38 because that is not what 38 is about.

The Crown brought to my attention - this is the very last thing and I apologise for going over time - a Canadian decision which they were going to hand up to your Honours but have not.  It is on the case list and it is the decision of KGB 79 CCC (3d) 257. Can I just explain why it is relevant? It was a case in which the Canadian Supreme Court modified the common law relating to prior inconsistent statements and held that, in certain circumstances, they may be admissible for a hearsay use. But, significantly, they emphasised that it would only be where the hearsay dangers with the evidence - where there were circumstantial factors pointing to reliability and circumstantial factors justifying admission. If I can take you just briefly, your Honours, to the bottom of 287. It is stated there ‑ ‑ ‑

KIRBY J:   This is being put forward as some sort of analogy, is it, of the way in which ‑ ‑ ‑

MR ODGERS:   The reason I am advancing is to point out that even those jurisdictions which have been prepared to let in prior inconsistent statements for a hearsay use, they have said that you should only do it where there are good circumstantial guarantees of reliability, for example, where the out-of-court statement was made on oath and where there is an opportunity to cross-examine, and, of course, we say, it was not on oath, there was not an opportunity to practically cross-examine because of the practical problems we have articulated.  There were very strong circumstantial reasons for doubting the reliability of the out-of-court statement, and I have dealt with that.

So, without going through the case in detail, the point I make is that, even in those jurisdictions where there has been a willingness to, notwithstanding the absence of legislation like section 60, modify the orthodox rule, they have emphasised the need for circumstantial guarantees of a liability.  Now in New South Wales section 60, on the face of it, permits a blanket overcoming of the rule, but there is the discretion in 136 ‑ ‑ ‑

GAUDRON J:   You just told us that reliability was irrelevant to the discretion under section 38; why are you taking us to this case to show that it is relevant in Canada?

MR ODGERS:   Well, at the very least, it is relevant to 136 – the discretion under 136.

GAUDRON J:   But that was never engaged in this case.

MR ODGERS:   Your Honour, what I do say is, it is not irrelevant.  What I am saying is that if there ‑ ‑ ‑

GAUDRON J:   I have misunderstood all your submissions on this, because I distinctly heard you say to me that reliability was an irrelevant consideration in relation to ‑ ‑ ‑

MR ODGERS:   It is irrelevant as a positive factor ‑ ‑ ‑

GAUDRON J:    ‑ ‑ ‑and I asked you, was unreliability equally irrelevant.

MR ODGERS:   And I have withdrawn that concession; I have said, it is not equally irrelevant.  It is relevant.  Unreliability is very relevant to 192, the unfairness point.

GAUDRON J:   Are we talking about the same thing - reliability and unreliability, different sides of the same coin, are we not?

MR ODGERS:   That is why I put the proposition that reliability may negate unreliability, it may negate unfairness, but it is not a positive reason for admitting the evidence.

So what I am saying, it is like – if I can draw an analogy to evidence of bad character let in to rebut good character.  It comes in to negate good character; it cannot be used positively as evidence to show the guilt of the accused.  Here the argument I am advancing is that the reliability of the out‑of-court statement cannot be used as a positive reason to grant leave.  The only reason for taking into account reliability is to negate any argument that is advanced that the operation of section 60 will have the effect of creating unfairness because the hearsay use will result in unfairness given the low reliability of the out-of-court statement, and the Crown can legitimately say, “Well, that is not correct; it is highly reliable and there is

no reason to think the jury will not use it properly”.  That is the best I can do, your Honour.  Thank you.

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

AT 4.07 PM THE MATTER WAS ADJOURNED