Adam v The Queen

[2000] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S133 of 1999

B e t w e e n -

GILBERT ADAM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 MAY 2000, AT 2.22 PM

Copyright in the High Court of Australia

MR I.S. LLOYD, QC:   May it please the Court, I appear with my learned friend, MR S.J. ODGERS, for the appellant.  (instructed by John B. Hajje & Associates)

MR R.D. ELLIS:   If the Court pleases, I appear with my learned friend, MR D.C. FREARSON, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Lloyd.

MR LLOYD:   Thank you, your Honour.  There are three issues raised by this application that, we submit, are of general importance to the administration of the criminal law.  Each of the issues concerns the application of different sections of the New South Wales Evidence Act in dealing with criminal trials.  I make the point at the outset, your Honours, of course, that Act is substantially taken up by Commonwealth and ACT legislation.

Could I briefly summarise the three points as we see them.  The first concerns the application of section 38 of the Act which, of course, deals with cross-examination of witnesses for one reason or another.  The question is this:  whether and how the various common law principles which were recognised in cases such as Blewitt in Australia, Sinclair in the UK, and a variety of cases dealing with accomplice evidence, continue to have any significance, if at all, in respect of the exercise of the judicial discretion.

GAUDRON J:   Does that not depend ultimately, though, on whether the Act makes this evidence admissible in proof of the facts represented?

MR LLOYD:   Certainly, your Honour, that is one aspect of it.

GAUDRON J:   No, not one aspect of it.  Does not the scope and operation of section 38 and the discretion that is associated with it, depend on the affect that the Act has, if any ‑ ‑ ‑

MR LLOYD:   We say not necessarily for this reason:  section 38 itself gives a discretion.  In exercising that discretion, one must also go to section 192 as the Act lays down.  In section 192 it says that one of the aspects one can look at is fairness.  Can I take your Honours to that.  I will just find it myself.  We see in section 192(2)(b):

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

We say this at the outset:  merely because a piece of evidence is admissible, does not necessarily mean ‑ ‑ ‑

GAUDRON J:   But what I am putting to you is, why do you start with that assumption?  In this Act, why do you start with that assumption?  Why not deal with the question whether or not, under this Act, the evidence was admissible in proof of the facts?

MR LLOYD:   I am coming to that, your Honour.  I am coming to that.

GAUDRON J:   Yes.  Because if it is, that would seem to me to bear, necessarily, on the discretion and on what is unfair and so forth.

MR LLOYD:   I accept that, that it clearly has relevance to the exercise of the discretion.  Perhaps I should start with that point, your Honour, and go to that point.  I was going to say that the second point is concerning the application of section 60 of the Act.  Does it have any application in this case where the prior representation, in this case it is the ERISP interview of Thaier Sako, was admissible, if it was at all under the sections of the Act dealing with credibility, in particular, sections 102 and 103?  We all know that section 102 lays down a blanket prohibition and says:

Evidence that is relevant only to a witness’s credibility is not admissible.

In order to go further, one must go to section 103 for the exception that that rule:

does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.

GAUDRON J:   Even apart from that, what is section 60 directed to?  As I read it, it is directed to the situation in which what is relevant is that somebody said something, not that it is relevant because it was said and not for a hearsay purpose.  It is, for example, where you prove, “and he called out fire”, where what is relevant is not whether there was a fire or not, but that he called out “fire”.

MR LLOYD:   With respect, that really goes to the res gestae, your Honour.

GAUDRON J:   Not necessarily ‑ ‑ ‑

MR LLOYD:   We are far and away from that.  We are in a situation here where a witness in an unsworn ‑ ‑ ‑

GAUDRON J:   Is not section 60 directed, at least on one reading, to that ‑ ‑ ‑

MR LLOYD:   Well, on one reading of it that is so, your Honour, because it deals with the purpose for which the evidence is being tendered.

GLEESON CJ:   Am I right in thinking – correct me if I am wrong, and I may be confusing it with some other provision of the Act – one of the common circumstances in which section 60 now operates in a civil case is that records of doctors’ histories given to them by their patients become admissible under section 60 as evidence of the facts recounted by the patient to the doctor?  Is that a way it works in practice?

MR LLOYD:   Well, your Honour, to tell you the truth, I would not have a clue, I do not appear in civil cases.  But I could understand why that would be the case.  Those records, we would say, must by their very nature be far more reliable than evidence such as this where one has an out-of-court unsworn statement ‑ ‑ ‑

GAUDRON J:   No, that is not the question.  The question is what work does section 60 do?

MR LLOYD:   Section 60 there would clearly make it admissible, the records of doctors.  We are not saying that that is not the case here ‑ ‑ ‑

GAUDRON J:   I do not see why that would be so myself.  But, it may, on one view it may, but ‑ ‑ ‑

MR LLOYD:   We are saying here you must read section 60 down to look at the purpose for which the evidence is being tendered.  Now, it was accepted in this case by the advocate prosecuting ‑ ‑ ‑

GAUDRON J:   So, on one use, section 60 merely replicates the common law principle that the hearsay rule does not exclude evidence where it is relevant to prove what was said on a particular occasion.

MR LLOYD:   But we are not dealing with what was said here; we are dealing with what was seen. 

GLEESON CJ:   In order to understand the hearsay rule, it is necessary to go back to section 159(1), is it not? 

MR LLOYD:   That is so.

GLEESON CJ:   Section 60 is an exception to section 159(1) and section 159(1) talks about what evidence is admissible to prove.  There are then a series of exceptions to that principle, one of which is section 60.  One thing that is puzzling me at the moment, Mr Lloyd, both generally and in relation to its application with this particular case, is the relationship between section 60 and section 66.  In the present case, was the evidence admitted under section 60 or under section 66 or both?

MR LLOYD:   I think the answer is both.

GLEESON CJ:   They have to be working in combination, is that right?

MR LLOYD:   That seems to be implicit in the judgment because clearly we have here a criminal proceeding where the maker was available to give evidence because he was – there was argument on “fresh in the memory” – in the end his Honour Mr Justice Wood said it was fresh in the memory.

GLEESON CJ:   I could not pick that up.  Where does he say that?

MR LLOYD:   It was given some eight weeks after the homicide in question.

GLEESON CJ:   I just could not see Mr Justice Wood dealing with the question of freshness.  I overlooked it in some way.

MR LLOYD:   It is after the main argument, and it is picked up – in the application book it is around page 26.  No, it has to be earlier than that.

GLEESON CJ:   Get Mr Odgers to look at it -  I should have noticed it myself - and go on with your argument and then come back to it.

MR LLOYD:   In any event, your Honour, there is no doubt that his Honour Mr Justice Wood - and I would not argue with this.  I do not think one could possibly say that eight weeks after the event was not fresh in the memory, as a matter of logic ‑ ‑ ‑

GAUDRON J:   Well, you might be talking yourself out of special leave on that basis.

MR LLOYD:   Well, I would remember if I was involved in a homicide eight weeks after, but ‑ ‑ ‑

GAUDRON J:   Well, what has been said in this Court about that?

MR LLOYD:   It is a matter of degree.  But our argument is this ‑ ‑ ‑

GAUDRON J:   It seems to me if it is admissible under section 66, and that seems to me to be a big question, then there really is not much in this case.

MR LLOYD:   Except for this:  when one is looking at the general grant of leave to allow the evidence in, even if it could be regarded as fresh, there has been enough time here to concoct it, and there are reasons to concoct it.

GAUDRON J:   Well, if that is so, that may be an indication – if that is the evil which is attempted to be excluded by section 66, there may be reasons for thinking that “fresh” means what this Court said it meant.

MR LLOYD:   If “fresh” is given in a situation where one would say fresh in the sense that there is no chance of concoction, we would clearly argue here that it is not fresh.  There is ample ‑ ‑ ‑

GAUDRON J:   What did you argue below?

MR LLOYD:   It was argued below it was not fresh; that because of the chance of concoction it was not fresh.

GLEESON CJ:   Has Mr Odgers found where Justice Wood deals with that.

MR ODGERS:   It is referred to in the judgment of the Court of Criminal Appeal.

MR LLOYD:   Paragraph 131 which is found at page 85 of the application book at about line 27.

GLEESON CJ:   I knew it was referred to in the judgment of the Court of Criminal Appeal but, indeed, it is to the contrary of what you said, they say “Justice Wood did not deal at length with issues of freshness”.  Did he deal with it at all?

MR LLOYD:   I am instructed – and Mr Odgers was in the lower court – I am informed by Mr Odgers that it was not argued to any substantial degree.

GLEESON CJ:   At first instance.

MR LLOYD:   At first instance.  It was before the trial judge.

GAUDRON J:   It was argued before the trial judge?

MR LLOYD:   No ruling was made.  One of the problems I face, your Honour, is obviously the application book is limited, but I am informed that ‑ ‑ ‑

GAUDRON J:   The difficulty seems to be that you have not prepared the case.

MR LLOYD:   I do not have the full transcript of the case and it was a complex matter, but I am informed that no ruling was made in the lower court at trial.  In the Court of Criminal Appeal the Crown sought to support it.

GAUDRON J:   It was assumed that the evidence was admitted under section 60?

MR LLOYD:   Yes.

GAUDRON J:   All right.  If either section 60 makes the evidence admissible, or section 66, which you seem to concede, all one is dealing with is an exercise of discretion.

MR LLOYD:   Yes, if you get that far, that would be so.

GLEESON CJ:   Is it a fairness question?

MR LLOYD:   Obviously it is a fairness question to a large degree.

GLEESON CJ:   And it is the opportunity for concoction, and the fact that he is an accomplice and would have a motive to implicate your client, that is behind it?

MR LLOYD:   That is so.

GLEESON CJ:   Where did Justice Wood deal with that?

MR LLOYD:   He deals with the exercise of discretion in his judgment.  He considers the issues at page 19 of the application book.  He weighs the matters, picking it up at page 19.

GLEESON CJ:   I see.

MR LLOYD:   And then for one side, for the applicant, and then at page 21 for the Crown.  Where we say he fell into error, with respect to the learned trial judge, is on page 22 of the application book, amongst others, at (viii) at line 40.  We say that regardless of whether the line the witness has taken is a lack of memory or otherwise, there is still unfairness.  Here, we submit, the unfairness is clearly resultant regardless of that because the prosecution only called this witness in order to get before the Court – and this is admitted, the sole forensic purpose was to put before the Court his prior inconsistent statement.

GAUDRON J:   Unfairness does not seem to me to involve anything much beyond a value judgment, which is well within the bounds of the trial judge’s function, if the evidence is admissible and probative.

MR LLOYD:   Except here, of course, your Honour, when looking at section 38 and section 192 they say nothing about the probative value of the evidence.  It is not found in those two sections ‑ ‑ ‑

GAUDRON J:   No, but do we not start in this Act with whether the evidence was probative of anything?

MR LLOYD:   Well, yes, except on dealing particularly with section 38 it does not deal with that; it does not mention that as a factor.

GAUDRON J:   Evidence is not admissible - it is not relevant if it is not probative, is it?

MR LLOYD:   That is so.  That one goes back to the section 103 argument.  In the very reason why the prosecution wanted to cross-examine on the prior inconsistent statement went to credibility.  We say, after the witness’s evidence in-chief, which effectively was neutral, there was no substantial probative value in having him cross-examined on the prior inconsistent statement.  It could not have had substantial probative value going to the fact in issue in the case.

GLEESON CJ:   That really comes back to the conclusion that Justice Wood expressed, rightly or wrongly, at page 24, line 30.

MR LLOYD:   Of course, I have referred your Honours to the case of Carusi and we say that that is not a conclusion he was entitled to come to.  That was an irrelevant consideration for this purpose, that he must purely look at the evidence on its face.  He cannot go and form value judgments in his exercise of discretion, that that was an improper matter to refer to.

GLEESON CJ:   I am just not sure what you mean by that.  What we have here is an account given in the electronically recorded interview eight weeks after the event, and he is confronted with a whole lot of arguments, somebody saying this is an accomplice; he has a motive to implicate people; he wants to make things look good for himself and bad for somebody else.  Then he has some arguments going the other way by the Crown, and he considers all those arguments and then he says, “Well, I think that the version given in the ERISP, more probably than not, reflected his observations on the night”.  Now, that is as it were a judgment on the voir dire.

MR LLOYD:   That is so.  We say, looking at the principles, for example, in the famous English case of Christie, it was an improper thing for him to do, to form his own value judgment on that evidence.

GLEESON CJ:   Ultimately that is going to be a jury question ‑ ‑ ‑

MR LLOYD:   Certainly.

GLEESON CJ:   But in deciding whether to permit the jury to have this information before them, is the judge not entitled, indeed bound, to form his own view on that subject?

MR LLOYD:   We say not.

GLEESON CJ:   Well, how does a judge go about deciding whether something has substantial probative value?

MR LLOYD:   That is one of the very questions that is raised, and we say is of fundamental importance.

GLEESON CJ:   But am I right in thinking the judge has to decide whether the evidence has substantial probative value before it gets before the jury?

MR LLOYD:   That is so.

GLEESON CJ:   If it does not get before the jury, cadit quaestio, if it does get before the jury, they are the ones who are ultimately going to decide whether it does have probative value.

MR LLOYD:   Indeed.  We say that he must purely look at the evidence as it stands in this case, on the transcript of an ERISP or assisted by the ERISP tape itself, vis-à-vis the evidence given in-chief, or in this case on the voir dire, and decide on that its probative value.

Could I take your Honours to Carusi very quickly, and to page 66, at the top of the page, picking it up on the first line, the last two words:

The power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what

its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends.  The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect; whereas this Court may use its supervisory powers to set aside a verdict –

it goes on, it is not particularly relevant.  But that statement we rely on that his Honour should not have undertaken that exercise at that stage.  That was a matter for the jury.

Your Honours, I know the time is up.  Just coming back to a point that I did raise, the freshness ‑ ‑ ‑

GLEESON CJ:   It is not, actually.  Wait for the red one.  Go ahead.

MR LLOYD:   Okay, I will wait for the red.  In any event, going back to the freshness point:  I will make the submission that it is a matter of hours and days, not weeks, because of the possibility of concoction as was submitted here and has been submitted all along, that this witness had eight weeks to make up his account, handed himself in with his solicitor, gave an account, exculpatory of himself and his brother, when both were under the gun of the police investigation, and incriminated my client in a situation where they were, effectively, in rival camps.  Every reason to concoct and lie against those who were really involved.

Your Honours, I think I have said everything I can say on section 38.  We say that in exercising a discretion, when one looks at section 192, it demands that fairness be looked at and that that takes one back to the same principles that were applicable in Blewitt and Sinclair.  We say further, under section 60 that it was not admissible when one looks at the – and we say this is implicit in the application of section 60 – that one must look at the purpose, the forensic purpose, the primary forensic purpose, for which the prosecution is seeking to adduce the statement.  In this case it was stated to be solely to put before the jury the prior inconsistent statement.

GLEESON CJ:   Yes, thank you.  Thank you, Mr Crown.

MR ELLIS:   Your Honours, just on that issue of whether his Honour, the chief judge at common law, dealt with freshness.  The reference in his judgment is to pages 11 and 14 from the judgment of the CCA together with a number of transcript references.  I think the difficulty was that there were a number of other arguments which had been run in conjunction with, but earlier than this, one of which dealt with the issue of freshness in another context.  So I am not sure there is a lot of assistance, actually, in the material that is before your Honours in front of the application books.

GLEESON CJ:   Yes, I could not pick up where Justice Wood had dealt with this point.

MR ELLIS:   That is my understanding.  I thought that there was a single line where his Honour actually made a reference to an earlier judgment, but in the last couple of minutes I have not been able to find that single line.

GLEESON CJ:   I can see it referred to in one of those arguments being put by counsel on page 19, line 39, but he does not deal with it specifically as a point.

MR ELLIS:   Yes.  My recollection is that all he does is, in fact, make some reference to having previously dealt with it, which I know is of little assistance, but that is all I have been able to find.

There are a number of issues.  I would accept that the question about section 38, and the application of the Blewitt principle, does depend upon whether or not the out-of-court statement is admissible.  If it is not an admissible statement, then the position that pertained at common law in terms of the Blewitt decision, is the same.

GLEESON CJ:   Because Blewitt is a principle about getting inadmissible evidence.

MR ELLIS:   Yes, that is so.  It is only if, in fact, the Act operates in such a way to make the statement admissible that, in fact, Blewitt would not apply and the principles which are espoused in Hall by the Queensland Court of Criminal Appeal would, in fact, apply where they have a similar ‑ ‑ ‑

GLEESON CJ:   One of the things that we do not have before us is the way Justice Wood directed the jury about the use they could make of this evidence.

MR ELLIS:   Yes, that is true, it is not there.  I am assuming that if it went in for all purposes, the direction would have been that they could have used that material, both as to his credit in assessing what they did think was the truth out of all the things that he had said, and also that if, in fact, they accepted that what was in the interview was the truth, then they could, in fact, use that for the truth.

GAUDRON J:   It seems to be that his Honour, the trial judge, thought it would be in to prove the facts therein represented because he referred to Lee.  Did his Honour not refer to Lee and say that was the consequence of Lee?

MR ELLIS:   Yes, I think that is so, your Honour.  The Crown’s submission on this is that certainly section 59 limits the use which can be made of evidence.  If the evidence is admissible under section 55, we could go back to the basic proposition that if it is relevant, it is admissible.  Then the next test is under section 59 whether it is limited if one of its purposes is to put forward a statement upon which – an out-of-court statement – they seek to rely on the truth.

As your Honour mentioned, one of the ones is the example of “fire”.  Obviously, the fact that something is said, if that is of itself relevant, that would be an example that would come in under section 60.

GAUDRON J:   Well, a typical case is in, say, a manslaughter provocation case where, “I heard him say ‑ ‑ ‑

MR ELLIS:   Yes, it is what is said rather than the truth of it, which is important.  Also, in relation to the medical history, I think both in the case of Welch in the Court of Criminal Appeal, and also in this Court in Lee, the Court made reference to the fact that a consequence would be that a doctor’s history taking procedure, for instance in a sexual assault case or in any case where he took a history, that the affect of section 60 would be to make the history admissible.

GLEESON CJ:   My memory may be playing tricks with me, but all this is discussed in the Australian Law Reform Commission’s report on this Act, is it not?

MR ELLIS:   It is, yes, your Honour, and that was one of the basis of – moving at it, it was one of the criticisms that the jury were being told of a history and then told, “Well, yes, you can hear that but you cannot use it for the truth”, and it was whether or not juries would be able to deal with that jewel, “What do I do with this sort of evidence?”.  There are quite a few passages in the ‑ ‑ ‑

GLEESON CJ:   Regardless of whether the legislation misfired, there is not much doubt about what the Law Reform Commission intended should be the consequence of this, as I understand it.

MR ELLIS:   That is certainly so.  Even if we go to the operation ‑ ‑ ‑

GAUDRON J:   I do not understand what they intended by it.  As I read it, I would have thought it was related simply to cases where it was necessary to prove what someone says to establish provocation, for example, or that sort of thing.  I do not see where, even if one takes a broader view of it than that, how it would apply to a situation such as this where the Crown had no real purpose in discrediting the witness.  The purpose was a hearsay purpose.  That is to say, the fact intended to be asserted by the representation.  The very purpose of the prosecution in this case was to get the prior statement in as evidence of the facts.

MR ELLIS:   Yes, and, in fact, the Crown clearly stated that was its position and because it was in fact admissible on the Crown’s interpretation, it was saying that Blewitt did not apply.  But, your Honour, it is a little more complicated if one has a look at the combinations of sections and what is perhaps intended.  For instance, if, as is clear from the Australian Law Reform Commission that they wanted to make the law such that the history given to a doctor would, in fact, go in as any other piece of evidence and be admissible for all purposes, then in fact how you do that is how they have done it under section 60.  But what goes hand in hand with that, or the corollary ‑ ‑ ‑

GAUDRON J:   I do not know that they have done it.  It is not obvious to me that they have done it under section 60.

MR ELLIS:   If you read section 60, what it is saying is that if the evidence is admissible under section 55, it passes that threshold relevancy test, then if it meets with opposition from section 59, because in this case there is a purpose of relying on the truth, that in fact that rule will not apply and so limit the evidence if it is admissible for some other purpose.  So if it is admissible for, for instance, a credit purpose, if it is admissible for the fire example purpose ‑ ‑ ‑

GLEESON CJ:   In the case of a doctor, if a doctor is called to the witness box, the history given to him by the patient is admissible as the history.  It is the basis on which the doctor forms his opinion.  So that is the purpose for which the history, the doctor’s notes, are relevant.  But then section 60, on one possible view, by eliminating the rule stated in section 59(1), makes the doctor’s notes admissible as evidence on the facts stated or recorded in the doctor’s notes.  Not a terribly surprising consequence when you bear in mind that it simply means that the notes have the same standing as a business record.

MR ELLIS:   Yes.  The Crown’s submission is that section 60 clearly is aimed at producing that result and that there are a number of other areas where it is of assistance, one of which is where the statement of the words, or the saying of the words, “is of itself admissible”, which would have been so because that is not hearsay at common law because it is not tendered to prove the truth.  Indeed, there was an argument that the fire example does not require section 60 because it is not in fact caught be section 59 because it is not tendered for a hearsay purpose.

GAUDRON J:   That is the difficulty:  it is relating sections 59 and 60.

MR ELLIS:   Yes.  But there are other ways.  Leaving this case aside for the moment, if one looks at pieces of evidence which are potentially admissible as being relevant and meeting section 55, some of those pieces of evidence may have multi relevancy.  The Crown would say this case is a typical one, that it is relevant that there is an eyewitness account given shortly after.  That is a relevant issue which meets the section 55 test; it is something which would be of weight to a jury in considering the fact in issue.  It also has with it a credit issue, which is that this man is giving evidence before them, the effect of which in this case is that in fact Gilbert Adam was not anywhere near the deceased, Mr Carty, at the time.  So that is a significant plus for the accused, no matter what is said in the written submissions ‑ ‑ ‑

GAUDRON J:   Did he say that, or did he say he did not see?

MR ELLIS:   He said that there was no one standing near Carty apart from the man Esho, I think his name was, and himself.  But certainly that Adam was not one of them.  So it was strong or valuable evidence to the accused, this absence of his presence at a pertinent time.  The Crown says, therefore, the prior inconsistent statement was very significant and it went to the issue of credit.  So this piece of evidence ‑ ‑ ‑

GAUDRON J:   But all of this only happens because you called the witness.

MR ELLIS:   Yes, but the Crown has an obligation to call eyewitnesses generally.  I mean, I would have thought, normally speaking, an eyewitness to a murder is a witness within which the Crown is required to call under Whitehorn and Apostilides.  That being the situation, unless the Crown wishes to try to exercise the Richardson requirement of assuming, or concluding that the witness is not reliable and then not calling, which causes other consequences - perhaps my point is that a number of these sections are necessarily linked together to ‑ ‑ ‑

GAUDRON J:   But it seems to be, at least in terms of fairness, it would have been one thing for you to decide not to call him and leave it to the defence to call him and then to cross-examine him, and quite another thing for you to call him, have him declared hostile ‑ ‑ ‑

MR ELLIS:   Unfavourable.

GAUDRON J:   Unfavourable, yes, with the view to proving a representation to be used as evidence of the fact intended to be asserted by that representation.

MR ELLIS:   But only used in conjunction with what the witness is actually saying.

GLEESON CJ:   Would it have made a difference if the defence had called him and the Crown had cross-examined him about this previous statement?  Would it have made a difference to the admissibility of the previous statement?  You would not have needed leave to cross-examine him.

MR ELLIS:   No, you would not have needed leave, but in cross-examining him, the evidence would have to have been admissible as to the facts otherwise you would be caught by section 102 and you would then have to meet the section 103 exception of substantial probative value.  The Crown’s submission on that is that sections 102 and 103 are a red herring if, in fact, the hearsay rule does not apply.  But if the hearsay rule does apply, then the evidence ‑ ‑ ‑

GAUDRON J:   What do you mean by the hearsay does not apply?  You mean if there is an exception that covers this?

MR ELLIS:   Yes.  If section 59 applies, and it is not covered by any exception, then the evidence is only going in on the basis of credit, which means that section 102, which states that evidence which only goes to credit is not admissible, applies prohibiting that material unless the party calling can bring themselves within section 103.

GLEESON CJ:   So you have to get rid of the hearsay rule for your purpose?

MR ELLIS:   Yes.  The Crown ‑ ‑ ‑

GLEESON CJ:   But the hearsay rule is not a rule about what gets before the jury. 

MR ELLIS:   No, that is true.

GLEESON CJ:   The hearsay rule is a rule about what you can tell the jury is the use they could make of it.  The hearsay rule, if it applies without exception, is a rule, in effect, that you have to tell the jury that they cannot use it as evidence of the facts stated.

MR ELLIS:   Yes, but I think the consequence in the Evidence Act of the rule applying is that if it applies and the only other purpose for the evidence is credit, then section 102 comes into play and section 102 makes the evidence not admissible full stop unless the Crown, or the party calling, can bring themselves within the exception to 102 – and there are a number of them; 103 through to 108, some of which have been dealt with under the issues of complaint.  But it is an area where you need to look, perhaps, at section 38:  what was the purpose of having an unfavourable witness, and then look at the combination with section 60.

The Law Reform Commission indicated in its report on section 38 that - I have listed four, perhaps, main reasons for in fact having unfavourable witnesses rather than a hostile-witness situation, and that is that the law as before could prevent evidence being tested, that another consequence was that the law discouraged the calling of witnesses.  There was also a situation where if you had a witness who might be giving some evidence for one side and also some evidence for the other side, neither party wished to call so you ended up with a witness, who was perhaps more reliable than most, not being called by either party.  The last disadvantage was that there was no way of checking on corrupt or dishonest witnesses, when the party who is able to do so, normally the calling party, is not able to test or to reveal the deception.  In this case, if this man is called, the jury are asked to assess his evidence without having regard to the fact that shortly after – leaving the freshness issue aside for a moment – this murder he made a statement which was completely at odds.

GAUDRON J:   But that puts this case in a slightly different perspective.  The prosecution announced it would only call this man if he were to be ruled unfavourable and the prosecution were to be permitted to cross‑examine.  I understand the practicalities of that course of action.  I am not too sure that section 38 contemplated exactly that.  I think section 38 contemplated that you might take a gamble, not that you might be guaranteed in advance as to the outcome.

MR ELLIS:   Well, your Honour, if that was so, why, in section 38(6), which is the discretionary section for leave, did the Court not stipulate that as one of the matters that can be taken into account?  The fact is that with the leave requirement under section 38 you have the imprimatur of the Court before you can actually do this.  It is not a case, say, at common law where the Crown would simply call the witness and the judge had no right, theoretically, to reject the evidence.  Here, under section 38, there is a right to reject the evidence unless leave is obtained and his Honour, her Honour, can take into account whatever relevant matters they can, one of which can be whether or not it is improper or bordering on improper or unfair in terms of calling the witness.

But the reality in this case was that the Crown indicated that they intended to call the witness, the defence objected to that, there were a number of discussions and as a result of no one really knowing what he would say, the Crown called on the voir dire this witness and he was examined and cross-examined.  Then the Crown’s submission was that the Crown would only call him if, in fact, the evidence as admissible, because otherwise the Crown would have been breaching Blewitt.  If, in fact, the evidence was not admissible, then the Blewitt rule required that the Crown not call such a witness because otherwise it would have been improper to do so.

So the Crown would say the way in which this happened was not only practical, but it was the only way, legally speaking, that it could be so dealt with.  The theme through section 38 ‑ ‑ ‑

GAUDRON J:   When you say “admissible” you mean admissible as evidence of the facts represented in the statement?

MR ELLIS:   Yes.  Because that is the only difference between now with the Evidence Act and the common law in Blewitt.  There are a number of findings in the Queensland Court of Criminal Appeal case of Hall which perhaps the Crown would rely on.  There are a number of arguments in support of that judgment that are put.  Indeed, the Crown would say that that conclusion reached in Hall is, in fact, the appropriate conclusion which ‑ ‑ ‑

GAUDRON J:   Do you put the burden of your argument that it is admissible on section 60 or on section 66?

MR ELLIS:   In this case reliance was placed on both.  There is, as your Honour is aware, there will often be alternate situations.  In this case there is alternate situations.  One can imagine similar positions where, in fact, section 66 might not apply.

GAUDRON J:   I am just wondering if it applies here.

MR ELLIS:   There is a question of freshness.  This Court said in Graham, your Honour in the majority, said that it was to be measured – if I can recall it correctly – in hours and days and not years.  I think your Honour the Chief Justice, in agreement with Mr Justice Callinan, said that in fact the question was really contemporaneity  and that there may be – and I think all the Court agreed with that, that contemporaneity was the main test, “that there may be cases in which evidence of an event relatively remote in time will be admissible under section 66.”  In Graham’s Case the delay was about six years.  The Court, in saying “to be measured in hours and days”, I think in your Honour and Justices Gummow and Hayne’s judgment used that term.

GLEESON CJ:   The point at issue in that case was slightly different.  The point at issue was whether or not freshness connoted vividness in recollection.

MR ELLIS:   Yes, the suggestion being that you would never forget being sexually assaulted however long ago that happened.  I guess theoretically, that certainly would apply to witnessing a murder, but it has not been an issue raised in this case.

GAUDRON J:   You concede then, do you, that there is a real question as to section 66 in this case?

MR ELLIS:   I am not sure what your Honour means by “a real question”, but I concede that section 66 is an applicable section, is a relevant section, and the Crown’s submission is that within that section there is - the facts in this case, his Honour was entitled to conclude that this was, in fact, fresh within the appropriate time.

GAUDRON J:   Yes, but ‑ ‑ ‑

MR ELLIS:   I do not put a “but” on it, your Honour.

GAUDRON J:   That would seem to be an open question, would it not?  That would seem to be a question that is raised by this application and it would seem to be an important question, would it not?

MR ELLIS:   With respect, your Honour, the Crown would say that Graham’s Case has amply covered it.  You cannot set down a particular date within which it is okay and outside of which, in all cases, it is not.  This was 10 weeks, a couple of months, two-and-a-half months, and the Crown’s submission is that that is reasonably contemporaneous.  It is within the scope of what is said in Graham’s Case by the High Court, and factually speaking, his Honour made certain conclusions in that regard and the Crown would say that he was entitled to do so and that there is not any need for this Court, for instance, to revisit that issue, to try to define it any more than the Court has already done in Graham.

GLEESON CJ:   Thank you, Mr Crown.  Yes, Mr Lloyd?

MR LLOYD:   I have no further submission, your Honour.

GLEESON CJ:   In this case there will be grant of special leave to appeal.  We will adjourn for a short time to reconstitute.

AT 3.04 PM THE MATTER WAS CONCLUDED