Adam v The Queen

[2000] HCATrans 511

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
McHUGH J
KIRBY J
HAYNE

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 22 NOVEMBER 2000, AT 3.39 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the appellant with my learned friends, MR C.C. WATERSTREET and MS G.A. BASHIR.  (instructed by John B. Hajje & Associates)

MR A.M. BLACKMORE:   May it please the Court, I appear for the respondent with my learned friend, MR G.E. SMITH.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Now, Mr Odgers and Mr Blackmore, I am sorry that we have kept you waiting, but I have to say that because of the exigencies of the list and the fact that the next case is a part heard case where people are coming from Western Australia and South Australia, we will not be able to continue this case past 11.30 in the morning.  We will sit until 4.30 today and start again at 9.30 tomorrow morning.  If we are not finished by 11.30 tomorrow morning, we do not want either side to rush their submissions on this account; if we are not finished, then we will just adjourn the matter part heard to a date to be fixed.  Yes, Mr Odgers.

MR ODGERS:   Yes.  Your Honours, yesterday filed in the Court were submissions in support of an application for leave to amend the notice of appeal and a draft amended notice of appeal.  Do your Honours have those documents?

GLEESON CJ:   Yes.  What is your attitude to this, Mr Blackmore?

MR BLACKMORE:   Your Honour, we oppose the amendment to ground 2c.  We do not have any application in relation to the other two grounds, which seem to be just a reconstitution of the earlier one.

GLEESON CJ:   Well, then maybe the convenient course is for us to hear what Mr Odgers wants to say in argument and we can then determine the question of whether leave is given in light of what is said on both sides.

MR ODGERS:   Yes, your Honour, I really do not have anything to add to what is contained in the written submissions.

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Yes.  I will proceed with the other aspects of the appeal.

GLEESON CJ:   Yes.

MR ODGERS: Yes, your Honour. Your Honours, the appellant was charged with the murder of David Carty on 18 April 1997 at the Cambridge Tavern Hotel. An important witness in the trial was a man called Thaier Sako. The central issue in respect of the ground of appeal that is presently before the Court relates to a judgment which was made by the trial judge during the trial in which he granted leave under section 38 of the Evidence Act 1995 New South Wales to cross‑examine Thaier Sako, the Crown to cross‑examine Thaier Sako ‑ who had been called by the Crown, I should say.

GAUDRON J:   Well, had he?  At the time when leave was granted, had he been called?  Was he a witness?  I am not quite sure of the events.  There seems to have been a voir dire, which seems to have been directed to whether or not leave would be granted.

MR ODGERS:   Yes, your Honour.

GAUDRON J:   I have not studied the transcript exactly, but was he, in fact, a witness, at the time?

MR ODGERS:   The Crown indicated that unless there was a grant of leave, they would not call him.

GAUDRON J:   Exactly, which may mean ‑ because does not section 38 talk about “A party who called a witness”.

MR ODGERS:   Yes, your Honour.

GAUDRON J:   Now, the leave seems to have been granted before he was a witness. On one view of section 38, it may be that it is dealing with a case where you can call a witness and he or she is hostile on some particular point, and the trial judge may then give leave. It seems to me to be important to understand in relation in this case whether or not Mr Sako was, in fact, a witness when leave was granted.

HAYNE J:   Was leave granted at the time of the judgment or was leave granted at what is now page 1107 in volume 6, some 12, 13, 14 pages after Mr Sako had been examined in‑chief?  When do you say leave was given?

MR ODGERS:   Well, the sequence of events seems to have been ‑ ‑ ‑

GAUDRON J:   No, it is not good enough to tell us what it seems to have been ‑ ‑ ‑

MR ODGERS:   I am sorry, your Honour.  As I understand ‑ ‑ ‑

GAUDRON J:   I mean, this is an important question and we need to be ‑ ‑ ‑

MR ODGERS:   The sequence of events, as I understand it, was that the Crown indicated that they did have the intention of calling Sako, but it was made clear before he was called that he would not be called unless leave were granted under ‑ ‑ ‑

GAUDRON J:   Am I correct in thinking Mr Sako had not been a witness at committals, or whatever?

MR ODGERS:   That is correct.

GAUDRON J:   No statement of his evidence had been provided to the defence.

MR ODGERS:   That was also correct, yes.

GAUDRON J:   And that the defence objected to his being called, is that not correct?

MR ODGERS:   Yes, your Honour.

GAUDRON J:   Then, was it at that stage that the prosecution indicated that they only intended to call him if he could be cross-examined – no, he was called on the voir dire then.

MR ODGERS:   Yes, your Honour, but I understand that even before he was called on the voir dire, that I think it was made clear, even at that point, that he would not be called in the trial proper unless leave were granted.

HAYNE J:   What power was the judge exercising, or what procedure was the judge following, in conducting the voir dire that was held?  I do not want to sound captious, but what was happening is essentially my question.

MR ODGERS: At one point the judge referred to it as a “Basha inquiry” which is, as I understand it, an inquiry where, outside the confines of the trial, questions are asked of a witness in something as similar to a committal, in order to find out what the witness is going to say and, to some extent, that is what was happening here, although it had been made clear that the defence was objecting to the person being called as a witness, and that was why, I think, it was described as a voir dire. The conduct of what I will call the voir dire was, firstly, to find out what the witness would say and, secondly, to determine whether or not leave should be granted under section 38.

When he was called, in what I will call the voir dire, he gave certain evidence-in-chief. The Crown then sought leave under section 38 within the voir dire to cross-examine about earlier statements made to the police. That leave was granted. He was cross-examined about those earlier statements. He testified about them. He was then cross-examined by counsel for the defence. The evidence and the voir dire then concluded. Submissions were made by the parties on the question of whether or not leave should be granted under section 38 in the trial proper.

It was certainly at that point made clear by the Crown, if it had not been made clear earlier, that the Crown would not call him as a witness in the trial proper before the jury unless leave were granted under section 38. Leave was granted and his Honour the trial judge made it clear that the cross‑examination – that he was permitting cross-examination under section 38 to adduce evidence of these prior inconsistent statements, that is, the statements made to the police, and he also ruled that those statements could be used for a hearsay purpose and he would not exercise his discretions to prevent that. The witness was then called and the trial proceeded.

So, returning to your Honour Justice Gaudron’s question, it is my submission that the grant of leave occurred before he was called.

GLEESON CJ:   May I interrupt you for a moment to say that your application to amend the notice of appeal is refused.

MR ODGERS: Yes, may it please the Court. Let us submit then that where the application for leave was made in advance of the witness being called, certainly as a witness in the trial, and indeed it appears – I will check this tonight - it was flagged that there would be an application for leave, even before he was called as a witness in what I will call the voir dire, we would submit that section 38(1) did not apply.

Assuming that argument fails, I will move on.  Just in summary terms, his evidence in the voir dire and subsequently before the jury, was essentially that he did not see anything particularly relevant occurring at the time of the stabbing of David Carty.  In summary terms, he testified that he had had some kind of confrontation with David Carty.  He did not see anyone else around at that time, although, as I have indicated in the written submissions, he did appear to acknowledge that there were other people in the vicinity.  He testified that he was unable to nominate any particular individuals as being in the vicinity.

He was injured and then departed, essentially, the scene, and, as I say, specifically said that he did not see the appellant.  What he had said to the police on 2 July 1997, which was some 10 weeks after the death of David Carty, was, again in summary terms, that he had seen people in the vicinity of David Carty.  They included two particular people, Eddie Esho and the appellant; that he had seen Esho and the appellant, I think, punching David Carty and that, in particular, the appellant had some implement in his hand at that time.

When leave was granted in the voir dire to the Crown to cross‑examine him about those earlier statements, his explanation was that he had not seen those things; rather, he was recounting what other people had told him had happened. 

Now, your Honours, the ruling is to be found in volume 5 and I will not take you to the details of that for the moment.  In essence, what the trial judge did was to, as I have said, allow the Crown to cross‑examine regarding the prior inconsistent statements in the record of interview with the police and to use those statements for a hearsay purpose.  As your Honours will appreciate ‑ ‑ ‑

GLEESON CJ:   What page, Mr Odgers?

MR ODGERS:   Yes, your Honour, the precise ruling is at 1086.

GLEESON CJ:   Thank you.  No need for you to go to it, but I just wanted see it while you were talking about it.

MR ODGERS:   The judgment begins at page 1065, but the precise ruling is at 1086.  He had, in fact flagged – this is the judgment – the reasons for the ruling at 1055 of the transcript – no, I am sorry, it is not 1055.  I will check that and tell you.

GLEESON CJ:   I see a ruling at 1055, line 20.

MR ODGERS:   Yes.  Yes, your Honour, I think he had indicated earlier that he had given the ruling.  Page 1051, line 40.

His Honour appreciated, when he was considering the question of whether or not to grant leave under section 38, that such a course could not ‑ ‑ ‑

HAYNE J:   Just before you leave 1051.

MR ODGERS:   Yes, your Honour.

HAYNE J:   It may be a matter of no significance, but I read 1051 as no more than an indication that the judge will, at some future time, make an order granting leave.

MR ODGERS:   Yes.

HAYNE J:   Subject to such further parts of the transcript as you later point to, at the moment, all I am conscious of is that at 1107, in front of the jury, after some examination-in-chief, the judge then makes the order granting leave.

MR ODGERS:   Yes.

HAYNE J:   And that again, subject to where we get to in the next little while, it seems to me that it is that order, the order of 1107, which is the order of which you complain and the evidence that is then elicited in consequence of that order granting leave.  But please tell me ‑ ‑ ‑

MR ODGERS:   No, I appreciate the force of that, your Honour, and I think I have to concede that that was the ruling and that the earlier matters that I have taken your Honours to were essentially his Honour indicating what he proposed to do.

HAYNE J:   Now, it may be a matter of no relevance and no significance, I simply do not know, but it is not evident to me how, or under what power, the judge was conducting the voir dire that the judge did.  Now, that may be utterly irrelevant and if it is and you tell me so, then that is your position, but it is not self‑evident to me.  Do not assume that I understand.

MR ODGERS:   Yes.

GAUDRON J:   And I must say - I suppose this is for the benefit of the respondent’s counsel – I really do have some difficulty with the notion that trial judges should be doing this sort of thing in advance and other than in response to applications made at the time which the Act and normal procedures contemplate.  There is a very grave danger, I must say, that procedures like this may be perceived to put the judge a little too close to the prosecution or, indeed, perhaps to the defence in an appropriate case.  But, for my part, I wish to express concern at the use of these procedures and as to the consequences for the appearance of impartiality.

HAYNE J:   Moreover, as a separate, perhaps additional matter, it is not self‑evident to me that on a voir dire it is possible to necessarily identify the evidence referred to in 38(1)(a), the matter referred to in 38(1)(b) or, perhaps, in some cases – I do not know – whether the prior inconsistent statement has been made.  Inconsistent with what?  Presumably evidence given at trial.  Now, if there is a Basha inquiry going on in lieu of committal, I can perhaps understand what is then happening so that the accused has, instead of a committal, an inquiry in the course of running.

GAUDRON J:   Well, that may understand it but it would not deal with my concerns.

GLEESON CJ:   This witness had not given evidence at committal, had he?

MR ODGERS:   No, your Honour.  The fact of the matter was that he had been charged with murder and it was only during the trial that he was indemnified in respect of those matters and received a certificate in respect of murder.

KIRBY J:   I would have thought it would have been the last thing that you would have wanted for all of this to be unfolding before the jury without any indication as to how it was going to fall out and that therefore this procedure was adopted to the convenience of both sides in the absence of a jury so that both sides would not be put in the potentially embarrassing situation which could fall out one way, but could fall out another.

MR ODGERS:   I accept that, your Honour.

GLEESON CJ:   How many days had the trial been running by the time this happened?

MR ODGERS:   Two months.

GLEESON CJ:   So the last thing anybody would have wanted was for the trial to abort at this stage.

MR ODGERS:   That is certainly true.

GAUDRON J:   One can understand all of those things, but there still may be a need to consider whether there are other avenues to deal with this sort of problem and whether, at the end of the day, it might not just have to rest on the shoulders of the Crown Prosecutor to exercise his own independent judgment without involving advanced rulings on the part of the trial judge.

MR ODGERS:   I perhaps misled your Honours.  The murder charge had been dropped prior to the trial and, I am told, prior to the committal, but he was not called as a witness at the committal.

KIRBY J:   I realise that we are all summoned here in order to apply the Evidence Act, but if one looks at this, as it were, as a matter of principle in a rational trial system, it seems here is a witness, who, in a matter critical to the guilt of an accused, makes a statement, it is recorded, and then he resiles from the statement and both his original statement, any subsequent statement, are put before the jury and the jury then determines which one they believe.  It is not an irrational conclusion to come to.

MR ODGERS:   Your Honour, I anticipate no doubt that the respondent will put that argument, but there are a number of important considerations.

KIRBY J:   I realise you have a number of very important points to make on the Evidence Act ‑ ‑ ‑

MR ODGERS:   Your Honour, I was going to make substantive ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ and we are going to have to deal with that, but before we plunge into the Evidence Act ‑ ‑ ‑

MR ODGERS:   On the merits, your Honour, if I might use that terminology.

KIRBY J:   ‑ ‑ ‑ it does not seem all that irrational that both statements should be put before a jury of citizens who then consider where the truth lies.

MR ODGERS:   There are just a number of things I would say about it.  Firstly, the statement made to the police is made at a time when he has a very strong incentive to escape liability for himself and to assist his brother and his friends.  Secondly, he is being called as a witness  Secondly, he is being called as a witness ‑ ‑ ‑

GAUDRON J:   He had then been charged with the murder of David Carty ‑ ‑ ‑

HAYNE J:   At the time of interview?

GAUDRON J:   Yes.

MR ODGERS:   Yes.

GAUDRON J:   And I suppose we do not know, may we assume, charged on the basis of joint enterprise?

MR ODGERS:   Well, we do not know, of course.

GAUDRON J:   We do not know.  Well, one would have to consider that was ‑ ‑ ‑

MR ODGERS:   One would expect that that may well have been one of the bases upon which the Crown considered appropriate to charge him.  The second matter I was going to put to your Honour Justice Kirby was that some may regard it as a strange thing that a witness has been called by a party, and indeed the Crown, to give evidence which the Crown contends is unreliable, and that was, of course, this case.  The Crown was ‑ ‑ ‑

KIRBY J:   But the Crown’s contention would be, in the theory of things, that by its cross-examination of him, by reference to his previous statement, it could be shown that his evidence was very reliable but it was different from that which he is now giving.  That his true evidence is what he earlier said.

MR ODGERS:   Yes, that the Crown is saying that – because, of course, by the end of the voir dire they knew what his testimony was going to be.  But the characterisation of the situation is that the Crown intends to call a witness whose testimony they assert is unreliable but whose out-of-court representations they assert are reliable.

GAUDRON J:   So his evidence on oath is unreliable but his unsworn evidence is.

MR ODGERS:   Yes.

HAYNE J:   In circumstances where it is likely that at the trial there will be evidence that this man was in a position where it might be thought that he was an eye witness to the events giving rise to the charge.

MR ODGERS:   Yes.

HAYNE J:   And that if he is not called before the jury, the jury will not know what the position of this man who, on its face, seems to be an eye witness, might say about those events.

MR ODGERS:   Yes, although your Honour will appreciate from the written submissions that we say there is a clear distinction between what a witness might say and what you know he will say.

HAYNE J:   Yes.

GAUDRON J:   Had this witness been indemnified at the time of committals?

MR ODGERS:   No, the indemnity only occurred during the trial.

GAUDRON J:   But the charge was dropped prior to ‑ ‑ ‑

MR ODGERS:   No, I think the charge was dropped earlier – yes, I think the sequence was that he had originally been charged with murder.  Before the committal that charge was dropped, but that a charge of assault was maintained.  He was a defendant at the committal on the assault charge.  Subsequently, after the committal, the assault charge was dropped.

McHUGH J:   It was not dropped till 25 November.

MR ODGERS:   I am sorry, after the trial.  During the trial he was indemnified against all charges except the assault and murder and ‑ ‑ ‑

KIRBY J:   Was that not on condition that he gave honest evidence?

MR ODGERS:   Yes, on condition that he – he was not indemnified against prosecution for perjury ‑ ‑ ‑

KIRBY J:   Except as to murder.

MR ODGERS: And he also received a certificate under section 128 of the Evidence Act in respect of anything incriminating him against criminal offences which would obviously extend to the murder.

GLEESON CJ:   He was, himself, wounded in what I might call the melee.

MR ODGERS:   Yes.  He received a serious stab wound to the neck.  I will come back to that later.

McHUGH J:   His certificate went on the charges that he had been charged with; he was also given a certificate in respect of the offence of conspiracy to convert the course of justice.

MR ODGERS:   Yes, that is true.

GAUDRON J:   The Court is to give a certificate under section 128.

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

GAUDRON J:   I must say that worries me too.  For my part, I think there may be a serious problem about that.

McHUGH J:   Chapter III anyway, the exercise of federal jurisdiction.

GAUDRON J:   Well, certainly in any case involved in the exercise of federal jurisdiction, but for my part, I think there might be a serious problem, even in the exercise of non-federal jurisdiction.

KIRBY J:   That problem only arises very incidentally to this case, does it not, because you are not appearing for the witness, and his position may be determined in some other process.

MR ODGERS:   Yes, your Honour.  Just returning to the proposition your Honour Justice Kirby put, another consideration relating to the substantive issue is something I will come back to when making submissions on the grant of leave.  One of our submissions is that the defence counsel was put in a very difficult position in terms of dealing with the evidence of a witness where, in court, he asserts that what he had said out of court was simply information he had been given by other people.  But I will come back to that difficulty that it that is confronted by a defence counsel, and was confronted by this defence counsel, when I make submissions on the leave question.

KIRBY J:   Somewhere lurking in there is also the fresh issue which, although it arises under the Evidence Act as to whether it is fresh evidence, is also, I suppose, a question of principle as to whether or not after the delays that were involved here, the evidence could be regarded as so uniquely reliable because it is close to the events, or sufficiently distant from the events that it amounts to a form of reconstruction.

MR ODGERS:   In respect of that, of course, again focusing on the substantive issues, we would point to, one, the motive to improve his own position and that of his friends and family; two, the time gap of 10 weeks; three, the circumstance that of course he had been seriously injured on the occasion itself, which raises question marks about his capacity to recall events accurately; and fourthly, there was evidence that he was drunk at the time.  These are all matters that bear on the value to be given to both his testimony and his out-of-court representations, although I appreciate that it could be said that these are, ultimately, jury questions.

Your Honours, returning to the judgment itself, the trial judge recognised that the course that was adopted in this trial could not have been contemplated under the common law.  The decision of this Court in Blewitt, which I will discuss probably tomorrow, made it clear that it would generally not be appropriate for the Crown to call a witness for the purpose of getting in a prior inconsistent statement and relying on it for a hearsay purpose and, of course, one of the central issues raised by this appeal is whether or not that position has significantly changed under the Evidence Act.

I should make it very clear at this stage, and I do not think it is contended by the respondent otherwise, that the Crown conceded at the trial that if the evidence of what Sako told the police was not admissible for a hearsay purpose then the Crown would not call him as a witness.

Now, a central issue in this case is the operation of the Evidence Act, as I have said, and particularly the application of section 60 of the Act, which was considered by this Court in Lee.  It has been contended by the respondent in the written submissions that Lee really resolves this case and I should, I think, deal with that question immediately.  It is our submission that it does not.  Can I take your Honours to Lee?

HAYNE J:   I speak only for myself, but I would find it of assistance at some point if you took me, at perhaps unduly laborious length, from section to section through the Act to see how it was relevantly engaged because we get to 60 only via a path, which seems to me to begin at 38, go via 59 off into 103, 4 and then back into 60.

MR ODGERS:   Yes, well that is certainly our submission.  I will certainly take your Honours through that path but, if I could just briefly deal with Lee.  Your Honours, at page 595 the judgment of the Court begins by referring to the fact that at that trial the prosecution sought to get in evidence of what a witness, Calin, had said to the police both about what he had seen and heard but also about what he had been told by the accused and the question was whether section 60 permitted the use of what he had been told by the accused as evidence of the truth of what was asserted.

At page 598 in paragraph 16 the Court noted that:

Several grounds of appeal were canvassed…..it is necessary to deal only with the contention that evidence of what Mr Calin had said out of court reporting the appellant’s statement to him did not establish the truth of this alleged confession.

So the submission I make is that the court focused only on that narrow question of whether or not section 60 applied to what I will call the second hand hearsay. 

HAYNE J:   It is perhaps reason enough to start with the Act, rather than with the cases.

MR ODGERS:   Yes, your Honour, I will do that.  A fundamental distinction is drawn in the Evidence Act between Part 2 and Part 3.  I am sorry, Chapter 2 is headed “Adducing evidence”, Chapter 3 is “Adducing evidence”, that is to be found just before section 12 ‑ ‑ ‑

GLEESON CJ:   No, Chapter 2 is “Adducing evidence”.

MR ODGERS:   I thought I said that, I am sorry, your Honour.  Chapter 2 is “Adducing evidence”, Chapter 3 is “Admissibility”.

GAUDRON J:   All of this proceeds on the basis that hearsay evidence is probative and, therefore, relevant.  The whole debate proceeds on that hypothesis, and you do not challenge that hypothesis?

MR ODGERS:   No, I accept that in Papakosmas your Honour in a joint judgment pointed out that in some circumstances out‑of‑court statements may not even meet the test of relevance and that you need to look at the circumstances in which the statement was made.  I do not contend in this case that the statements made by Sako to the police were not relevant as evidence of the truth of what was asserted.

GAUDRON J:   Were not relevant, yes.  You see, I mean, at least so far as the old exceptions, common law exceptions to the hearsay rule were concerned, the hypothesis or the underlying rationale was that those exceptions operated in cases where the evidence was likely to be reliable.

MR ODGERS:   Yes, your Honour.

GAUDRON J:   Now, here you have a man who, at the time, has been charged with murder, has not been indemnified, one can assume is at least in the same position as an accomplice in respect of whose evidence there would need to be a warning because the experience of courts is that their evidence is not necessarily reliable.  One might think that the old common law rationale for the exceptions underlying section 66 – and, I mean, for my own part, I have a difficulty as to the assumption that the evidence is necessarily relevant.  Perhaps it is a question to be dealt with in terms of probative value and reliability and prejudicial value.

MR ODGERS:   Yes, we certainly submit that, but we do not submit that it was irrelevant.

GAUDRON J:   You suggest it had a ‑ ‑ ‑

MR ODGERS:   I suggest that it had extremely limited probative value.

GAUDRON J:   Well, for the purposes of the Act it had a rational tendency ‑ ‑ ‑

MR ODGERS:   To affect the probabilities of the existence of a fact in issue.

GAUDRON J:   The probability of the existence of the fact, what?

MR ODGERS:   That the appellant murdered David Carty.

GAUDRON J:   By that do you mean struck the fatal blow?  Murder is a conclusion of law.  I do not want to be difficult about this, but I find this area very difficult.  It is a fact to be proved.

MR ODGERS:   Well, perhaps it is true to say that there was more than one fact in issue.  One fact in issue, of course, was whether or not the appellant did strike the fatal blow.

GLEESON CJ:   Well, participated in the fatal attack.  Mohan Case says that if a number of people sit on a man with knives and he dies, you do not have to prove who struck the fatal blow.

MR ODGERS:   I understand that, your Honour, but, as I understand it, the Crown case was that he did strike this fatal blow, but alternatively if he did not, he was party to it.

GLEESON CJ:   So what the Crown had to prove was that your client participated in the fatal attack?

MR ODGERS:   Yes.  So the relevance question under 55 is whether or not the representations by Sako to the police, 10 weeks after the event, that he saw the appellant striking the victim, whether or not they met the test of relevance, that is, they could rationally affect the assessment of the probability of the existence of that fact in issue.

HAYNE J:   So, making it concrete in relation to the question that immediately preceded the ruling at 1107, the question before you fell:

Q.  Did you see anybody else near you and that man?
A.  No, I didn’t.....

If in his police statement, and it seems to have been the case, he said, “Yes, I saw people near by”, I understand you to accept that that out-of-court assertion could rationally affect the assessment of the probability of a existence of a fact in issue.  Is that right?

MR ODGERS:   I am nervous about making the concession, but, yes, your Honour, I have made that concession.  I think I was making submissions about the Evidence Act provisions and, as I was saying, Chapter 2 deals with adducing evidence, Chapter 3 deals with admissibility. Sections 38 and 43 fall within Chapter 2 and they are procedural provisions. Section 38, in certain circumstances, permits a party who calls a witness to question that witness as if in cross-examination. Section 43 permits – I withdraw that - lays down procedures or requirements for how a party cross-examines a witness about a prior inconsistent statement.

As I say, these are procedural provisions.  Clearly, the structure of the Act is that they do not touch on the question of admissibility which is a discrete issue.  As your Honours now, of course, appreciate, the first relevant provision for admissibility is section 56, which provides that:

evidence that is relevant…..is admissible…..

Except as otherwise provided by the Act –

The definition of “relevance” is defined in 55 and we have addressed that.  An important point about section 55 is that subsection (2) refers to evidence relevant only to “the credibility of a witness”.

It is our submission that that provision – subsection (2) does not say that evidence relevant only to the credibility of a witness meets the definition of “relevance” in subsection (1).  It simply indicates that it may.  But, nevertheless the test of relevance is subsection (1), and that is an important issue which relates to the meaning of section 103.

GAUDRON J:   Well, I must say, for my part, I should have thought evidence as to the credibility of a witness who has given evidence as to a fact in issue would always be relevant.

MR ODGERS:   I think that is correct, your Honour, yes.  It would always meet the test in subsection (1), but that is not necessarily the case ‑ ‑ ‑

GAUDRON J:   And also in the case of a fact relevant to a fact in issue, I should have thought.

MR ODGERS:   Yes, your Honour.

GAUDRON J:   Now, what else could a witness give evidence about?

MR ODGERS:   Your Honour, I am only making the point for the purpose ‑ ‑ ‑

GAUDRON J:   But I think your point lacks a certain logical foundation.

MR ODGERS:   No, perhaps I have not made it clear, your Honour.  The touchstone for relevance is affecting the probability of the existence of a fact in issue.  If it does not do that, it is not relevant.  If it is not relevant, it is not admissible.  I accept what your Honour puts to me that evidence relevant to the credibility of a witness will almost invariably, and it is difficult to think of any exceptions, meet that test.

GLEESON CJ:   But unless it is relevant, no other question about its admissibility arises because of section 56(2).  You need look no further than section 56(2) to determine the inadmissibility of irrelevant evidence.

MR ODGERS:   Subsection (2), your Honour, does not determine anything, with respect.  It just makes it clear that just because it is relevant only to credibility does not, by itself, mean ‑ ‑ ‑

GLEESON CJ:   No, section 56(2), I said.

MR ODGERS:   I am sorry, your Honour.  Yes, quite.

GLEESON CJ:   You shut the book after reading section 56(2) if evidence is not relevant.

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   So all the other provisions that render evidence actually or potentially inadmissible assume that it is relevant because if it were not relevant none of those would arise.

MR ODGERS:   Correct.

GLEESON CJ:   Is that a convenient time?

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   We will adjourn until 9.30 in the morning.

AT 4.28 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 23 NOVEMBER 2000