Adam v the Queen S139/2000

[2000] HCATrans 698

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 THURSDAY, 23 NOVEMBER 2000, AT 9.37 AM

(Continued from 22/11/00)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Two matters from yesterday, your Honour.  Firstly, if I could just go back to the application to amend the notice of appeal, your Honour will recall that there was one aspect which was not contested by the respondent which was the addition of paragraph b in the amended notice of appeal that was ‑ ‑ ‑

GLEESON CJ:   It was paragraph c we were concerned about.

MR ODGERS:   Yes, I assumed that that was the case and I understood that leave had been granted in respect of b and I just wanted to confirm that.

GLEESON CJ:   Yes, that is right.

MR ODGERS:   Yes, thank you, your Honour.

Your Honours, I reconsidered overnight the issue of relevance of the out-of-court statement by Thaier Sako for a hearsay use and I reflected on the terms of section 55 of the Evidence Act, and particularly the words, if I could take your Honours to section 55, the words after “that”, “if it were accepted”.  The submission I make is that, in this context, those words refer to the making of the previous representation, not to the reliability of the assertions contained therein.  Those words do not require a court to assume the truthfulness of the assertions, only the truthfulness of the evidence that, in this case, Thaier Sako gave to the effect that he said those things to the police. 

On that basis, I submit now that the evidence of what Thaier Sako said to the police was not relevant for a hearsay use and I rely on the judgments of Justices Gaudron and Kirby in Papakosmas and also the observations of your Honour the Chief Justice and Justice Hayne in the same case.

I will not take your Honours to the various discussions in that judgment but the relevant passages are at, in respect of your Honours Justices Gaudron and Kirby, pages 313 and 315, and your Honour the Chief Justice and Justice Hayne, at page 309.

In my submission, the question is whether there was anything in the contents or circumstances in which the previous representations were made by Thaier Sako which renders those representations probative of the facts asserted.  Put into question slightly differently, is there anything in the contents or circumstances from which a tribunal of fact could rationally conclude that the assertions are reliable?  If there is nothing on which that conclusion could be reached, then the evidence could not rationally affect the probabilities of the existence of a fact in issue.  The question is not whether or not the court or the trial judge concludes that the assertions are reliable, but rather whether or not a tribunal of fact could rationally conclude that they are reliable.

GLEESON CJ:   Is that question to be considered by considering the representations in isolation or in the context of other evidence in the case?

MR ODGERS:   I accept that it is the latter, your Honour, with perhaps an important qualification.  Justice Wood, the trial judge in this matter, considered this evidence and, indeed, came to a conclusion, I think, at one point in his reasons for judgment that it was very probative.  Obviously, the submission I am making that it is not relevant is quite different from that conclusion.  It appears that one of the factors his Honour took into account was the consistency between what was said by Thaier Sako and what had been said by other witnesses relied on by the prosecution.  Our submission would be that that is not a relevant consideration in determining relevance in the way in which it needs to be addressed in the circumstances of this case.

HAYNE J:   Mr Odgers, I am, I suspect, a furlong behind this limb of your argument.  Can I take you back to section 55?

MR ODGERS:   Yes, your Honour.

HAYNE J:   The phrase “if it were accepted” is to be understood in the present context how?

MR ODGERS:   The evidence in question was the evidence of Thaier Sako in the voir dire and subsequently in the trial that he said certain words to the police when interviewed on 2 July 1997 and on the other occasion.  Therefore, the words “if it were accepted” require the determination of relevance to be conducted on the basis that that evidence was accepted, that is, that he said those words.

HAYNE J:   If that is right, how does any hearsay question ever arise?

MR ODGERS:   Your Honour, with respect, I would submit that, as your Honour and the Chief Justice and Justices Gaudron and Kirby in substance said in Papakosmas, one needs to look at the circumstances in which the hearsay statement was made in order to determine whether or not, if I could use the language of section 55, it could be rationally concluded that it is probative of the facts asserted and one may well conclude that in most circumstances such a conclusion can be reached.

HAYNE J:   But the “it” in the phrase “it were accepted” is a composite reference, is it not, to the composite fact that the witness made an out‑of‑court assertion, the content of which was A, B, C, D?

MR ODGERS:   Yes, but of course, in this case, Thaier Sako did not assert in his evidence that what he had said to the police was true.

HAYNE J:   I understand that, but at the point of relevance, what is the inquiry that is to be made?  Is the inquiry whether, if it were accepted that the witness made an out‑of‑court assertion, content A, B, C, D, that - trying to find a neutral term – material could rationally affect, et cetera?

MR ODGERS:   Yes.

HAYNE J:   Leaving over for inquiry under 59 and associated provisions questions about admissibility of evidence, which by hypothesis, is relevant.

MR ODGERS:   Yes, your Honour.  And, of course, the fact that a person had said certain things may be relevant in different ways.  If the mere fact that it was said is ‑ ‑ ‑

HAYNE J:   The Subramaniam problem.

MR ODGERS:   Yes.

HAYNE J:   Yes, I understand that, but that is not this realm of ‑ ‑ ‑

MR ODGERS:   No, where it is being relied on for a hearsay use to prove the truth of the facts asserted, then it is necessary to engage in the relevance inquiry first before then proceeding to the operation of section 59 and exceptions to the rule.  In my submission, there was nothing in the circumstances in which these representations were made which would permit a conclusion that it could be rationally concluded – I think I have repeated myself – that the assertions were reliable.

GLEESON CJ:   Where did Justice Wood deal with this?

MR ODGERS:   Your Honour, he did not deal with this precise question, but he certainly expressed the view in his judgment in volume 5 at, for example, page 1079 he referred to his satisfaction at line 43:

that the probative value of the account given was significant ‑ ‑ ‑

GLEESON CJ:   Well, he said that he would not grant leave.  He was dealing with a discretionary consideration, as I understand it, here.

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   He treated the probative value, or the probative affect of this, as relevant to the exercise of his discretion.

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   And he said that he would not exercise his discretion in favour of letting this in unless he was satisfied that the first account was more probably than not reliable.

MR ODGERS:   Yes, your Honour.  Subsequently at page 1085 at line 25:

I 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.

Then at line 47:

The probative value of their evidence –

that is a reference to both Thaier Sako and Bashar Hurmiz –

is very significant –

GLEESON CJ:   May I ask you, how did the Court of Criminal Appeal deal with that finding of fact by the trial judge?

MR ODGERS:   A Court of Criminal Appeal did not address that question.  As I recall it, the submission was that his Honour had erred in granting leave, but so far as I can recall there was nothing in the Court of Criminal Appeal judgment which addressed this question, but I quickly add that I do not believe that this point was raised in the Court of Criminal Appeal.

GLEESON CJ:   Well, what happened was that at a stage when the trial had been running for about two months and the trial judge had been listening to evidence for two months, he heard this argument and he made this finding of fact about this evidence, and you want us, not only to disagree with the finding of fact, but to say that it is irrational?

MR ODGERS:   Yes, your Honour.  Your Honour, if I could just make some brief submissions in respect of that.  It is our submission that there were no circumstances which could rationally permit a conclusion of relevance in the sense indicated in section 55.  There was no contemporaneity.  The representations by Thaier Sako were exculpatory, not against interest.   Thirdly, there was a clear danger of concoction.  The fourth matter I will deal with in a moment, which is a clear danger of distortion, but I will return to the clear danger of concoction.

KIRBY J:   Just before you do, on contemporaneity, I do take the force of your written submissions about freshness, and so on, but in the world of litigation where people are requested to remember things, years, sometimes decades later, 10 weeks, was it, in this case?

MR ODGERS:   Yes, your Honour.

KIRBY J:   Is really quite contemporaneous.  Now, I realise you refer to the way memory works, and so on, but why is not this?

MR ODGERS: Your Honour, I am actually using it not in the freshness of memory sense in section 66, but rather in a similar way to the res gestae doctrine.

KIRBY J:   The idea behind both doctrines, statutory and common law, is the same.

MR ODGERS: With respect, no, your Honour. The res gestae doctrine at common law is reflected not in section 66 in the Act, but in section 65, and I can take your Honour to that. But, in substance, the distinction between the two, in my respectful submission, is that the res gestae doctrine focused very much on either a contemporaneous, that is, at the same time as the events were occurring ‑ ‑ ‑

KIRBY J:   Yes, that is very contemporaneous.

MR ODGERS: Yes, and it was then qualified by the House of Lords to something which was perceived to be very soon after, and I have in mind minutes, as distinct from anything else. The House of Lords in the authorities, relating to res gestae at common law, talked about excluding the possibility of fabrication or concoction and, of course, the longer the period is, the less likely it is you are going to exclude that possibility. Section 66 reflects a different rationale. It is that there should be a new exception created for the hearsay rule where, most importantly, the person who made the representation is available to testify which, of course, was not required by the res gestae doctrine.

In those circumstances, it was believed and considered by the Law Reform Commission that it was appropriate to create a new exception where the events were fresh in the memory because it was likely to be more reliable than the in-court testimony of the witness, but that witness could be cross-examined about it all and, really, that, with respect, was the rationale.

GLEESON CJ:   Mr Odgers, the reasons that Justice Wood gave for forming the conclusion that the version given in the electronically recorded interview more probably than not reflected Sako’s observations on the night, extend from pages 1079 to 1085.  Where are those reasons in error?

HAYNE J:   In light of the Court of Appeal’s finding at 1667 in paragraph 137, where the court appears to have addressed this realm of territory concluding that:

Counsel for the appellant was unable to point to anything that could constitute an error in the exercise of the discretion.

MR ODGERS:   Your Honour, I cannot say that it was put to the Court of Criminal Appeal that the evidence was not relevant, nor do I believe it was put to the Court of Appeal that it was not probative.  I believe it was put that it was not significantly probative but, in respect of the question of whether or not there is error, I have made written submissions on the leave question as to errors we submit were made by the trial judge, and I will just refresh my memory about those.

We have submitted in the written submissions that his Honour was in error to conclude that the account in the record of interview was reliable.  We submitted that it was wrong for his Honour to, for example, compare the reliability of the account given to the police with the account given in testimony and, for example, say that one was more reliable than the other in the exercise of the leave discretion.

HAYNE J:   The point you now make, as I understand it, is that this evidence could not rationally affect the outcome.

MR ODGERS:   Yes.

HAYNE J:   That is a very large hurdle, one, at least as far as I can see, not addressed in the Court of Appeal, addressed at length by the trial judge, and you at the moment point to no error, specific error, in the trial judge’s conclusion.

GAUDRON J:   I suppose one of the problems in this area – and I do not know where this leads – is, I mean, if there were only two true alternatives, it happened in these circumstances or it happened in those circumstances, then the rejection of one would necessarily involve the other having probative value.  Can that same line of reasoning apply, one would, if it is not a true alternative, query, and one does not know if there were other possibilities in this case.

MR ODGERS:   Yes, well, certainly my submission is that there was a third possibility, that is, that neither account was reliable.

HAYNE J:   Why are they not par excellence questions for the collective wisdom of the jury, rather than a judge taking the issue away from consideration by the jury on the basis that it could not rationally lead to the conclusion?  The very height of the hurdle is the difficulty that confronts you.

MR ODGERS:   Your Honour, I accept that, but if the hurdle is surmounted, then the answer is self-evident, with respect.

GLEESON CJ:   But part of the significance, I would have thought, of the carefully reasoned finding of Justice Wood is that he made it in the context of having decided, as a matter of discretion, that he would set what might be thought to be a very high hurdle for the admissibility of this evidence.

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   There was not any reason as a matter of law, as distinct from a matter of discretion, why he should have said what he did on page 1079 at line 40, is there?

MR ODGERS:   No, your Honour, that is correct.

GLEESON CJ:   That was an exercise of discretionary judgment on his part, so he said, “I am going to set the bar very high before I let this happen”.

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   Then having set the bar as high as that as a matter of discretion, he came to the conclusion that he did on page 1085, line 25, for the reasons that he gave over the preceding six pages.

MR ODGERS:   Yes, your Honour.  Yes, that is correct, he set the bar considerably higher than the relevance bar. 

Your Honour, returning to your Honour the Chief Justice’s questions, I have submitted one reason, we say, for error in the comparison exercise.  If I can take your Honour to page 1082, line 35, can I say, just by the way, that his Honour at page 1085 found these points referred to by the Crown as persuasive, he indicated that at line 25, and I needed to point that out first.

The second paragraph, the version he gave fitted in very well with the disinterested lay witnesses, in my submission.  I have already made the submission that that is not a relevant consideration in determining relevance, the fact that it fits in with witnesses, even disinterested witnesses.

GLEESON CJ:   What if it had fitted in with other things that he had been proved to have said on other occasions, other things he admitted having said?  In other words, what if it was consistent with his own statements on other occasions?

MR ODGERS:   Yes, I would accept that that would be relevant.

HAYNE J:   And, indeed, if it were flatly contradictory of evidence given by others, would that not, itself, demonstrate its relevance, its relevance to determining the fact?  Relevance is not a one‑way street.

MR ODGERS:   No, I understand that, your Honour.  I submit that, over the page, that the fourth point, that:

he was a witness who was particularly well placed to see, and to describe now to the jury what had occurred –

is not a relevant consideration.  It is not a question of what he could say, but rather what he does say, which is the matter that must be considered.  At the moment those are all I can think of, your Honour, to answer the question.

If I could just briefly return to the submission we are making that there was a clear danger of concoction, there are a number of factors I should point to.  Firstly, I said it yesterday, he had a powerful motive to implicate others and deflect the police attention away from himself and his brother, Thamir Sako.

GAUDRON J:   Was Thamir charged with anything?

MR ODGERS:   He was charged with murder the day after the incident and, subsequently, that murder charge was dropped, yes.

HAYNE J:   So you say the trial judge was wrong in his conclusion at (vi) on 1083?

MR ODGERS:   Yes, I do, your Honour.

GAUDRON J:   When was the charge against Thamir dropped?

MR ODGERS:   I understand it was dropped this year.

GLEESON CJ:   Was he convicted of any offence?

MR ODGERS:   Yes.

GLEESON CJ:   What was he convicted of?

MR ODGERS:   Maliciously inflict grievous bodily harm.

GLEESON CJ:   And did he appeal to the Court of Criminal Appeal?

MR ODGERS:   Your Honour, there have been two trials.  There was a trial involving this appellant and his brother, Richard Adam, which resulted in appeal.  Richard Adam’s appeal against conviction was allowed.  This appellant’s was dismissed.  There was a subsequent trial this year in respect of a number of other persons including Eddie Esho, whose name was mentioned yesterday, and a number of others, including the brother of Thaier Sako, Thamir, and in respect of that trial no one was convicted of murder.  Thamir was convicted of maliciously inflict grievous bodily harm and I do not know whether there has been an appeal lodged in respect of that.  There has been, I understand.

GAUDRON J:   But Thamir did stand trial for murder?

MR ODGERS:   No, your Honour.

GAUDRON J:   Never?

MR ODGERS:   Never.

GAUDRON J:   But he was charged with murder?

MR ODGERS:   I am sorry, yes, he was, the day after the incident itself and then that charge was subsequently dropped this year.

Your Honours, a related aspect is that there was an opportunity to concoct – that Thaier Sako, when he gave his interview on 2 July 1997, had a clear opportunity to concoct his account with other persons.  If I could just take you through the chronology.  We have not included some of the material I am about to take your Honours to in the written chronology that we provided; we will provide another one in due course.  But, if I could just go through it quickly.

The murder occurred on 18 April 1997.  Thaier Sako and Thamir Sako were charged with murder very soon thereafter and they were represented at that point by a solicitor named Skouteris.  Two important witnesses at the trial were Tony Bakos and Dennis Oshana, and there was evidence at the trial that they were members of a group which had been called the Assyrian Kings, a street group of which Mr Thaier Sako and Thamir Sako were also members.  They were interviewed fairly soon after the incident and gave records of interview which did not implicate this appellant.

Some time later, Tony Bakos and Dennis Oshana contacted Thaier and Thamir Sako’s solicitor, Mr Skouteris.  He, the solicitor for Thaier and Thamir, took Tony Bakos and Dennis Oshana to the police for further records of interview, which he sat in on.  In those interviews they implicated Gilbert Adam, the appellant, and exonerated both Thaier and Thamir Sako.  Subsequent to those records of interview, Mr Skouteris, along with members of Thaier Sako’s family, visited him in prison.  Subsequently, Mr Skouteris approached the police on behalf of Thaier Sako, indicated to them that Mr Sako wished to be interviewed, and on 2 July 1997 he went with Mr Skouteris to the police and gave the record of interview, which is the evidence presently in contention.

We point to this chronology to support an argument that there was at least an opportunity for Thaier Sako to concoct an account implicating the appellant, exonerating himself and his brother, and to do so along with Dennis Oshana and Tony Bakos.

GLEESON CJ:   Perhaps the relevance of that submission is in support of your argument that the conclusion of fact made by Justice Wood at page 1085 is wrong.

MR ODGERS:   Yes, your Honour, and it also relates to the other issues raised globally in this appeal about the probative value generally of the interview and the other issues that I will come to in due course.

GLEESON CJ:   Well, that is a finding of fact about the probative value generally of the interview.

MR ODGERS:   Yes, your Honour.  Perhaps it relates also to broader policy questions about how the provisions of the Evidence Act should be applied in circumstances such as this.

GAUDRON J:   But is it not the case that the law would treat the ERISP – if the material in the ERISP had been the subject of direct evidence on oath by Thaier Sako, that would be treated as unreliable, as at least potentially unreliable, of sufficient unreliability as to attract the necessity for a warning?

MR ODGERS:   Yes, your Honour.  I would go further, your Honour.  There is a line of authority which I have referred to in the written submissions in which the common law courts have resisted the calling by the Crown of accomplices in circumstances where they have an incentive to implicate an accused person and I have referred to those authorities.

KIRBY J:   But tell me how the common law courts can resist.  I mean, the courts have the function to neutrally determine the case if the prosecution has the responsibility and privilege to call its evidence.  I mean, warnings can be given, maybe some discouragement can be given in judicial reasons, but in the end the delineation of the function of the prosecutor and the court is a very important one to be observed, it seems to me.

MR ODGERS:   Yes.  Your Honour, I appreciate the force of what your Honour says about the delineation.  Nevertheless, Justice Lee said in Booth’s Case in 1982 in the New South Wales Court of Criminal Appeal at page 851 at point C:

In this State, the practice is, when the Crown intends to call an accomplice, for the judge to sentence the accomplice, if he is charged, and to do that before he is called; and I would say that that practice is one which should be followed in all cases, unless there are the most cogent reasons for not so doing.  By following that practice and disclosing to the jury that the accomplice has been dealt with means that the jury are not placed in a position of speculation in regard to the accomplice, and his position as a witness for the Crown and having the full facts before them can do justice to the accused and the Crown ‑ ‑ ‑

GAUDRON J:   Well, that was not an option here.

MR ODGERS:   No, your Honour, of course not.

GAUDRON J:   What I was suggesting is that reliability is not necessarily entirely a factual consideration.

MR ODGERS:   Yes, I make that submission, your Honour.  If I could finally conclude in respect of the danger of concoction in this case, as I have said, it was Thaier Sako who approached the police to give the account that he did and, as a matter of fact, his approach was, of course, very successful.  He was subsequently granted bail, the murder charge against him was dropped, he was indemnified ‑ ‑ ‑

GAUDRON J:   How did that come about?  Is there any evidence as to how that came about?

MR ODGERS:   There was evidence that it happened.  As to how it came about, there was ‑ ‑ ‑

GAUDRON J:   But he was not indemnified for murder?

MR ODGERS:   No, your Honour.  The indemnity is actually in the appeal book and you will find that ‑ ‑ ‑

GAUDRON J:   I take it it is a DPP indemnity, is it, or an Attorney-General?

MR ODGERS:   Attorney-General, your Honour.  It was an indemnity for all offences, except murder and perjury.

HAYNE J:   It is read to him at 1094.

MR ODGERS:   Yes, thank you, your Honour.  However, he was, at the trial, given a certificate by the trial judge pursuant to section 128 of the Evidence Act which had the effect that any evidence he gave at the trial could not be used against him.

GAUDRON J:   That would have included evidence implicating him in murder, would it?

MR ODGERS:   Yes, your Honour.

GAUDRON J:   Well, now, at some stage, could you direct me to the transcript where that happened, if you just give me the page references?

MR ODGERS:   Yes, certainly.  The indemnity is to be found at page 1609 in appeal book 7, and my juniors will find the references for the other material.  Can I also point out, your Honours, that, even though on the Crown case he lied in his testimony at the trial, he was never subsequently charged with perjury in relation to that.

GAUDRON J:   Well, then, you need corroborative evidence for perjury, or you used to.

MR ODGERS:   Your Honours, can I return now to where I left off yesterday, which was taking your Honours through section 55 and 56.  I think I had said all I needed to say about 55 and 56.

GLEESON CJ:   Mr Odgers, is that part of the Act?

MR ODGERS:   Your Honour, I am having difficulty seeing it.

GLEESON CJ:   That diagram.

MR ODGERS:   Yes, it is, your Honour, and that may be of some assistance.  It provides a useful guide.  On that diagram the first question is, “Is the evidence relevant?”.  Then one goes to the hearsay rule, and I do not think there is any contention here that obviously the hearsay rule applied to the extent that the Crown wanted to use the previous representations as evidence of the truth of what was asserted.

GLEESON CJ:   But the hearsay rule only applies on the assumption that the evidence is relevant.

MR ODGERS:   Yes, your Honour.  The diagram is actually in error, when I think about – I think the diagram is misleading because when the answer is to the question, “Does the hearsay rule apply?”, and if the answer is, yes, the evidence is not admissible.  That has to be understood to mean it is not admissible for a hearsay use.

GLEESON CJ:   No, sorry, hearsay is about use.  Hearsay evidence is not evidence that you heard somebody say something.

MR ODGERS:   I understand that, your Honour.  Nevertheless, I did make the submission that, as much as it is relevant, that the diagram is misleading because it says, “THE EVIDENCE IS NOT ADMISSIBLE”.  Unless it is understood to mean that the hearsay evidence ‑ ‑ ‑

GLEESON CJ:   Evidence is only hearsay if it is being used for a certain purpose.

MR ODGERS:   Yes, I will not press the point, your Honour.  One of the issues in this appeal is that the Crown sought to rely on the representations for a non-hearsay use, that is, to attack the credibility of the testimony of Thaier Sako.  An important issue raised on this appeal is the operation of section 102 of the Evidence Act, and if I could take your Honours to that provision?

GAUDRON J:   Is this not a case in which it is difficult to isolate credibility from the actual admission of the hearsay evidence?  I presume you are going to section 102 because of section 60.

MR ODGERS:   Logically, it must come, I think, before one goes to section 60.

GAUDRON J:   Yes, yes.  The only point I make is, clearly enough, the attack on credibility was just a step to the ultimate purpose.

MR ODGERS:   Certainly.  Our submission is that the evidence was not admissible for a credibility use and, therefore, section 60 did not arise.  The issue, though, before this Court is whether or not section 102 was operative.  If it was not, then the only relevant provision would be section 55 and I must concede that the evidence of what Thaier Sako said to the police was relevant for a credibility use via its inconsistency with his in‑court testimony.  The question then arises whether section 102 was operative.

If the evidence was not relevant for a hearsay use, which is the issue which I have been addressing this morning, then plainly section 102 was operative because the evidence was relevant only to Thaier Sako’s credibility, but on the assumption that that submission is rejected, there is a classic question of statutory interpretation arises.  The question is this, “Does one prefer the literal meaning of those words, or does one add in, as an exercise in statutory interpretation, after the words “relevant and admissible”.

GLEESON CJ:   Is that interpretation assisted by reference to the report of the Law Reform Commission explaining what result they were intending to achieve?

MR ODGERS:   In my submission, it is, and I will take your Honours to that in one moment.  It is my submission that there are two classic reasons for not adopting the literal meaning of those words; firstly, what I think is called the golden rule, that it would produce absurd results; and, secondly, the mischief rule or the purpose of the legislation, and I will take your Honours to what the Law Reform Commission said about it in a very short order.  As for the ‑ ‑ ‑

GLEESON CJ:   Just to set the context, before you go any further, I am right in thinking, am I, that Justice Wood admitted this for a hearsay purpose, under section 60?

MR ODGERS:   Correct.

GLEESON CJ:   He did not need to consider section 66; is that right?

MR ODGERS:   Well, your Honour, I do not know that I can adopt the word “need”.  It appears that he did not.

GLEESON CJ:   But the Court of Criminal Appeal took the view that it was capable of being used for a hearsay purpose, both by reason of section 60 and by reason of section 66.

MR ODGERS:  I would not go that far, your Honour. My understanding is that they thought it was distinctly arguable that it could be used for hearsay purpose pursuant to section 66, but my recollection was that they did not actually come to that conclusion.

GLEESON CJ:   Subject to questions of discretion, which, of course, were large questions in the case, the only reason it might not be available under section 66 was the issue of freshness; is that right?

MR ODGERS:   Yes, your Honour, the ‑ ‑ ‑

HAYNE J:   At page 1666, paragraph 133, the court seems to draw back from expressing a final opinion on the alternative basis for admissibility.

MR ODGERS:   Yes, that was what I was referring to, your Honour.

GLEESON CJ:   On that alternative question, they were in just as good a position as Justice Wood to form a conclusion on the only matter that was in issue, subject to discretion, and that was freshness, as are we.

MR ODGERS:   Yes, I accept that, yes.  Yes, I think I would accept that.  The matters I have referred to as absurdities are listed in the appellant’s reply at pages 2 and 3, particularly at paragraphs (b), (d) and (e), and I just invite your Honours to  ‑ ‑ ‑

GAUDRON J:   Sorry, could you – (d)?

MR ODGERS:   Yes, I am sorry, your Honour, (b), (d) and (e); (b) is dealing with prior inconsistent statements; (d) is dealing with prior consistent statements; and (e) is dealing with evidence of tendency.

HAYNE J:   Again, lest I am a furlong behind you, Mr Odgers, can I just understand the submission you now make?

MR ODGERS:   Yes.

HAYNE J:   As I understand it, it is 102 should be read as if it said, “Evidence that is relevant and admissible only”.  Where the “only” goes I leave aside, but “admissible” should be injected there.  Does it follow then that under section 60, when it speaks of the hearsay rule not applying to evidence “that is admitted because it is relevant for a purpose other than proof of the fact”, that it, too, requires some ‑ ‑ ‑

MR ODGERS:   Your Honour, it is clear from the words because section 60 refers to representation “that is admitted”.  It has to have been admitted.

HAYNE J:   Because relevant, “because it is relevant for a purpose other than”.

MR ODGERS:   Yes.

HAYNE J:   And am I right in understanding that a purpose of section 60 was to avoid the mental gymnastics which juries were once called on to perform where they were told that they might take the witness’s out‑of‑court statement as evidence that the witness was unreliable?  They could not take the witness’s out‑of‑court statement as evidence of the truth of its contents.

MR ODGERS:   Your Honour, I would say two things in respect of that.  That, of course, is still the law in every other jurisdiction.

HAYNE J:   Yes, I understand that.

MR ODGERS:   And I would say that the reading of the Law Reform Commission discussion suggests that that was the only purpose.

GLEESON CJ:   When you say it is the law in every other jurisdiction, it is not the law in Queensland, is it?

MR ODGERS:   Quite right, your Honour.  In respect of prior inconsistent statements, not generally, but in respect of those alone such evidence is, by statute, rendered admissible for a hearsay purpose.

GLEESON CJ:   The result that was the outcome in the present case would have followed in Queensland, would it not?

MR ODGERS:   Yes, your Honour.

HAYNE J:   Now, if that is the purpose of section 60, what happens to the effectuation of that purpose if 102 is read in the fashion you propose?

MR ODGERS:   If 102 is read in the fashion that I propose then the evidence must go through the hurdle of section 103 before that hurdle is applicable in this context.

GAUDRON J:   Would it be correct to say that if the respondent’s construction of 102 is correct, the prosecution could simply have called the police officers who made the record of interview?

MR ODGERS:   No, your Honour, because ‑ ‑ ‑

GAUDRON J:   Why not?  It would be evidence that was relevant to Mr Thaier Sako’s credibility and it would be relevant on the respondent’s submission to a fact ‑ ‑ ‑

HAYNE J:   Only if Thaier Sako was a witness, though.

MR ODGERS:   Yes, that was what I was going to say.

HAYNE J:   You would have to have Thaier Sako as a witness for 102 to be engaged, do you not?

GAUDRON J:   Yes.

MR ODGERS:   No, for 55 to be engaged, your Honour. 

GAUDRON J:   What I am suggesting is this. If the respondent’s submission is correct ‑ and this may very well bear on the discretion in section 38 ‑ if the respondent’s submission is correct, the prosecution could have put Mr Sako in the box without seeking leave to have him cross‑examined as a hostile witness. It could have called the policemen and tendered the record of interview, if the respondents are correct.

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

GAUDRON J:   Well, that would seem to be a matter relevant, at least to ‑ ‑ ‑

MR ODGERS: The exercise of leave under section 38.

GAUDRON J:   Yes. Well, section 38 then may bear on the construction of section 102 as well.

MR ODGERS:   Yes, your Honour.  Have I answered your Honour Justice Hayne’s question?  The submission I make is that if 102 is applicable, then the evidence has to go through the hurdle of 103 for it to be admitted for a credibility use.  Only then does one consider section 60 in order to determine what flow‑on consequences may occur in respect of a hearsay use.

I dealt with the argument based on absurdity by referring to what I have written.  If I could go to what the Law Reform Commission said about this, particularly in the final report, at paragraph 180 of the final report, paragraph (a).  It is stated there in respect of “Credibility evidence relevant for other purposes”:

In a trial, evidence of the events in question may reflect badly on one or more of the parties and arguably in such a way as to affect their credibility as witnesses.  The interim proposals on credibility had the effect that evidence relevant to facts in issue and to credibility could not be used to assess the credibility of a witness unless the evidence satisfied the rules proposed for evidence relevant only to credibility.  The issue was raised whether the proposal would prevent a party relying upon evidence that contradicted a witness’ evidence to attack the credibility of the witness.  This result was not intended and should not occur under the interim proposal.  The reason for the provision was a concern to avoid the misuse of evidence.  The interim proposal, however, requires the court to engage in the mental gymnastics of taking evidence into account for one purpose but not another.  The Commission has tried to avoid this elsewhere and takes the view that it should be avoided here.  It has, therefore, removed the limitation in the interim proposal on the use to which evidence relevant to the issues and credibility may be put.

In my submission, it is clear from that that the purpose behind section 102 – and I should point out that the drafting of the Law Reform Commission was somewhat different from 102; perhaps I should take your Honours to that.

GLEESON CJ:   It is in the interim report that you saw the full extent of the Commission’s criticism of the common law on this subject.

MR ODGERS:   Your Honour, we are dealing with a different context to section 60.  In the interim report the ‑ ‑ ‑

GLEESON CJ:   In the interim report they referred to a comment that “the rules resemble an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists”.

MR ODGERS:   Yes, your Honour, and there was a lengthy discussion in the interim report about the problems, as your Honour Justice Hayne pointed to, of telling a jury that when evidence is admitted for a credibility use, it cannot be used for a hearsay use.  But the issue here is the reverse:  where evidence has been admitted for a hearsay use, whether it can be used for a credibility use.  It was the clear intention, as stated in what I have just read to your Honours, that the Law Reform Commission intended that where evidence has been admitted for a non-credibility use, for example, a hearsay use, that the evidence should not have to go through any credibility rules hurdles to be used for a credibility use.  Of course, the submission that I put to your Honours is that that purpose only needs to be effectuated where the evidence has, in fact, not only been held to be relevant, but has been admitted for a non-credibility use.

HAYNE J:   Well, can I go back, and in the course of going back, see if I can tease out a little more the problem that Justice Gaudron proposed about the prosecutor simply calling the police.  Evidence of the prior inconsistent statement, on one view, might be seen as evidence relevant only to whether Mr Sako should be believed, particularly evidence called from the police that he had given prior inconsistent statements could be led as relevant only because it demonstrated Mr Sako was not a witness of truth.

MR ODGERS:   Yes, your Honour.

HAYNE J:   But where Mr Sako is in the box being cross-examined, as to which see sections 38, et cetera, the credibility rule, that is to say section 102, is not engaged and does not apply, if the evidence has substantial probative value. What do you say as to that chain of reasoning, which is a chain which means that the prosecutor could not simply, without cross-examining Mr Sako, call the police to prove the prior inconsistent?

MR ODGERS:   Your Honour, so far as I have understood it, I would accept everything in the chain of reasoning up to the last point.  If section 102 operated, then the evidence could not have been admitted unless section 103 was complied with and 103 relates to the adducing in cross‑examination of a witness.

HAYNE J:   Yes, and Mr Sako relevantly was being cross-examined.

MR ODGERS:   Quite, but as I understood her Honour Justice Gaudron’s point, if 102 was not operative and therefore the 103 hurdle did not need to be passed through, the evidence could be admissible other than by a cross‑examination, and that it could be simply adduced from a police officer without having cross-examined Thaier Sako, for a credibility use; that is, to diminish his credibility.

HAYNE J:   That is to say, if the evidence was relevant for purposes other than a witness’s credibility?

MR ODGERS:   Yes.

GAUDRON J:   More precisely in this case, if it was relevant for a hearsay purpose?

MR ODGERS:   Yes, even if inadmissible for that purpose.

GAUDRON J:   And this comes up to counter an argument in the respondent’s submission that, in any event, the prosecution did not have to go through the 103 hurdle, is that right?

MR ODGERS:   Yes, certainly.

GAUDRON J:   Yes, this is how the debate arises?

MR ODGERS:   Yes.  If the respondent’s contentions are correct, 102 did not apply in this case.  The evidence was of what Sako said, which could obviously be adduced by a police officer, was relevant for hearsay use, even though inadmissible for that use, and because it was also relevant for a credibility use pursuant to section 55, it could be used for that purpose, notwithstanding non-compliance with 103.

HAYNE J:   As put, you have knocked it out at the hearsay level and you have not gone beyond the hearsay level.  As you just put the argument, the evidence dies for admissibility because it is hearsay.

MR ODGERS:   With respect, no, your Honour, because under section 55 and 56 ‑ ‑ ‑

HAYNE J:   It is relevant.

MR ODGERS:   ‑ ‑ ‑ if it is relevant for a credibility use, as well as relevant for a hearsay use, then it is admissible.

GAUDRON J:   But, in any event, this is not your argument.  This is the respondent’s argument.

MR ODGERS:   No, it is not.  I think I will leave it.

GAUDRON J:   Yes.

MR ODGERS:   But I deal with it, perhaps to ‑ ‑ ‑

GAUDRON J:   Perhaps Mr Blackmore might make it clearer.

MR ODGERS:   Yes.

HAYNE J:   I live in hope.

GLEESON CJ:   But we do know, do we not, that one of the principal things the Law Reform Commission was trying to do away with was the situation where a judge would solemnly instruct the jury that the prior inconsistent statement could be taken into account by them in assessing the credibility of the witness, but could not be used by them to work out what actually happened.

MR ODGERS:   Yes, your Honour.  But, in addition, the intention behind the forerunner of section 102 was to prevent the same problem arising where evidence of hearsay has been admitted and it put to the judge that he or she should direct the jury that it cannot be used for a credibility use because it has not complied with, in a theoretical sense, the rules applicable to credibility evidence.  I rely on that purpose behind this provision to support the interpretation that we have contended for.

Assuming then that 102 operates, then the only basis for admissibility of the prior inconsistent statement was section 103.  That, in turn, raises another important issue which has received the benefit of some authority in New South Wales, which I will be contending should not be followed in this Court and, indeed, perhaps amusingly, I will now be advancing an argument which is almost the opposite of the argument I advanced in respect of 102.  If I can take your Honours to that provision, subsection (1):

The credibility rule does not apply to evidence adduced in cross‑examination of a witness if the evidence has substantial probative value.

If I could just summarise the contention that we make.  It is that the words “substantial probative value” should be given the meaning ascribed in the dictionary for “probative value”, and if I can take your Honours to that immediately.  The dictionary to the back of the Act defines “probative value” to mean:

probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

Your Honours will, of course, appreciate that that ‑ ‑ ‑

GAUDRON J:   Does that drop the “directly or indirectly”?  I have not found it yet.

MR ODGERS:   Yes, it drops the “directly or indirectly” and it drops the “if it were accepted”, but for the purpose of this argument, the important point is that it retains the rational connection to a fact in issue.

GAUDRON J:   So it is not limited strictly to credibility – it is not limited to credibility?

MR ODGERS:   It is not limited to credibility.

GAUDRON J:   It does not apply to credibility?

MR ODGERS:   Exactly.  In fact, it excludes – to put the argument that I am making as simply as possible, we submit that the question is whether or not via credibility reasoning, it has a substantial impact on facts in issue ‑ ‑ ‑

GAUDRON J:   But is not a fact in issue, for the purposes of Part 3.7, credibility?  You have to limit fact in issue to its ‑ ‑ ‑

MR ODGERS:   In my submission, no.Fact in issue is not defined anywhere in the Act and my submission is I am not aware of any real authority on what those words mean.

HAYNE J:   But the critical words here are, are they not, “rationally affect the assessment of the probability of the existence of a fact in issue”?

MR ODGERS:   Yes, your Honour, and ‑ ‑ ‑

GLEESON CJ:   But the usual distinction is between a fact in issue and a fact relevant to a fact in issue.  Now, take the most obvious kind of fact that might affect the credibility of a witness, blindness on the part of a person who claims to have seen something happen.

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   The blindness of the witness is not a fact in issue.

MR ODGERS:   No.

GLEESON CJ:   The blindness of the witness might be a fact relevant, indirectly, to a fact in issue.

MR ODGERS:   Yes, your Honour.  Yes, but can I also say this, that the truthfulness or reliability of the witness’s testimony is not a fact in issue either.  To take this case, a fact in issue ‑ ‑ ‑

GLEESON CJ:   Except in a perjury case.

MR ODGERS:   Yes, of course.  In this case, simplifying it, the fact in issue was whether or not the appellant was involved criminally in the death of David Carty.  The submission we make is that the evidence, to get through the 103 hurdle, has to have a substantial direct or indirect effect on the probability of the existence of a fact in issue.

The respondent’s submission, I think ‑ but, in any event, the authority in New South Wales is to the contrary, and in RPS in the Court of Criminal Appeal, and not subsequently ventilated in the High Court, it was held by the Court of Criminal Appeal that the words “substantial probative value” should be interpreted to mean substantial probative value as to the credibility of a witness, and I will take your Honours to that now.  Do your Honours have the Butterworths Unreported Judgments?

GLEESON CJ:   Yes, yes.

MR ODGERS:   If I can take your Honours to page 17 and the large paragraph in the middle of the page:

S103 of the Evidence Act limits ‑ ‑ ‑

GLEESON CJ:   I am sorry, page 17?

MR ODGERS:   Yes.

HAYNE J:   Are you talking the Butterworths 17 or the page of the print?

MR ODGERS:   I am relying on the bottom at the right hand of the page.  I am not sure that I have precisely the same document as your Honours.

GLEESON CJ:   No, you do not.

MR ODGERS:   Well, it can be found at BC9703571 at 29.

GLEESON CJ:   Right, that occurs on our page 15.

MR ODGERS:   Yes, and it is a paragraph which begins with the words, “S103 of the Evidence Act limits”, and in that paragraph, it continues – this is the judgment of his Honour Justice Hunt:

limits cross‑examination as to credit to adducing evidence which has “substantial probative value”. The “probative value” of evidence is defined in the s3 Dictionary as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”, but both the context in which that phrase appears and the subject matter of s103 indicate that that definition does not apply.

There is a reference to the New South Wales Interpretation Act 1987, section 6.

That is made clear by the terms of subs (2), which demonstrate that the evidence must have probative value in relation to the credit of the witness.  Evidence adduced in cross‑examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness.

There is a reference to an earlier unreported single instance decision of Justice Hunt.

Such an interpretation accords with the intention of the Law Reform Commission -

and there is a reference to the discussion of the Commission in the interim report at paragraphs 817 to 820:

The addition of the word “substantial” nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue.  That limitation is an important one.

In our submission, the reasoning of Justice Hunt and the Court of Criminal Appeal should not be adopted by this Court and, in particular, we submit that although it does appear to have been the intention of the Law Reform Commission that the provision proposed by the Commission have the meaning allocated to it by Justice Hunt, that section 103 was changed from how it had been drafted by the Law Reform Commission and significantly so.  The Law Reform Commission proposal is to be found in the final report in clause 96, which is in appendix A of the final report.

GAUDRON J:   Before you go to that, the definitions do not say “unless otherwise indicated”. Section 3 says:

Expressions…..have the meanings –

but there is something in the ‑ ‑ ‑

MR ODGERS:   In the final report which further assists ‑ ‑ ‑

GAUDRON J:   No, in the Interpretation Act that affects the meaning of section 3.

MR ODGERS:   No, it affects the meaning of 103, as I will make apparent in one moment.

GLEESON CJ:   I thought Justice Hunt gave a cross reference in one of these footnotes.

GAUDRON J:   Yes.

MR ODGERS:   To?

GLEESON CJ:   The awkwardness, is it not?

GAUDRON J:   Interpretation Act 1987, section 6.

MR ODGERS:   I think his Honour is referring to a provision in the Interpretation Act which allowed a judge to look at context and other aids to interpretation for the purposes of determining meaning.

GAUDRON J:   Yes, but there is a prior question.

MR ODGERS: Section 3. I understand that, your Honour.

GAUDRON J:   It is not uncommon for definition sections to say “unless otherwise indicated”.

MR ODGERS:   Yes, that is correct.

GAUDRON J:   There is no “unless otherwise indicated”.

MR ODGERS:   That is correct, your Honour.  I was going to point to that in a moment.

GAUDRON J:   Yes, thank you.

MR ODGERS:   Your Honour, if I could just conclude the point I was making.  At clause 96(2) your Honours will see that what was proposed by the Law Reform Commission – this is at page 176 - your Honours will see there in relation to the credibility rule and, of course, it was drafted – 96 really involved a combination of what subsequently became 102 and 103 but, in subsection (2):

Where such evidence‑

(a) is relevant only because it is relevant to the credibility of the witness; and
(b) does not have substantial probative value as to the credibility of the witness,

it is not admissible.

The point I make, of course, is that those words “as to the credibility of the witness” did not find their way into section 103.  In my submission, it follows that the discussion of the Law Reform Commission does not ‑ ‑ ‑

GLEESON CJ:   What do you say about 103(2) and the light it throws on the meaning of subsection (1)?

MR ODGERS:   Your Honour, those matters, on either interpretation of subsection (1) are relevant considerations to a determination of substantial probative value.  The conflicting approaches are substantial impact on a fact in issue via credibility, which is the submission we make, or substantial impact on credibility.

HAYNE J:   Well, 103 may be seen, may it not, as having to deal with two quite disparate situations:  one, the attack on the credit of a witness, which really is a peripheral attack demonstrating that somebody did something discreditable 40 years ago, may not really dint their credibility.  There is that kind of problem.  There is also the problem, is there not, about attacking the credibility of the peripheral witness - the witness who is simply there to prove the photographs of the scene?  Courts are not going to allow a wholesale swingeing attack on the credibility of that kind of witness.  Does the deletion of the words that you have identified between drafts ‑ ‑ ‑

MR ODGERS:   After drafts, your Honour – I am sorry, after the Law Reform Commission.

HAYNE J:    ‑ ‑ ‑ reflect the fact that the weight of the operation of the provision is to be given to the facts in issue at the trial?  So that, if you have a real attack on an important witness, then 103 has something to say, whereas if you have a trifling attack on a real witness, or a real attack on a trifling witness, it is not.  But the thrust is, how does this rationally affect the assessment I make as the trier of fact of the fact in issue?

MR ODGERS:   Your Honour, our submission is that section 103, properly interpreted, requires a consideration of both the issues your Honour has articulated whereas, if it has the meaning ascribed to it by the Court of Criminal Appeal in RPS, only the first is to be considered under that provision, and no doubt discretion might be taken into account in respect of the second issue, but 103 has no work to do.

HAYNE J:   But in the context of the present case where the witness concerned was present at the scene of the critical event, and on one view was in a position to be an eye witness, demonstrating that that witness is not telling the truth in court, at least at first blush seems to me to be something that could rationally affect the chain of reasoning that the jury follow in determining the facts in issue.

MR ODGERS:   With respect, your Honour, the question is not whether it could, but rather it has a substantial impact – sorry; one has to combine the word “substantially” with the rationale consideration.  I appreciate your Honour’s first instance response, but I will now proceed to argue that the test is not met in this case in respect of this evidence.  I had to begin with the question of what 103 meant and I think I ‑ ‑ ‑

GLEESON CJ:   Just before you leave that, I think you may have been mistaken in what you said about section 6 of the Interpretation Act. Section 6 of the Interpretation Act provides that:

Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject matter otherwise indicates or requires.

MR ODGERS:   Thank you, your Honour.  I will conclude on the question of the proper interpretation of section 103 that it should be interpreted in accordance with the dictionary definition and, as your Honour Justice Hayne has pointed out, the difference between that approach and the approach of RPS would bite where one has a witness who is peripheral or unimportant, and I would add a very important extra adjective, and that is neutral, and by that I mean, a witness who does not in any significant way advance either the prosecution case or the criminal trial or the defence case in a criminal trial.  In my submission, to proceed to the argument that I make, this was a trial where the testimony of Thaier Sako was entirely neutral.  I have made the argument in a written form in paragraph 5.15 of the written submissions.

KIRBY J:   You say it was entirely neutral, but that was the point in issue as to whether it was or, by reference to a previous statement, it was shown not to be neutral but to have been warped.

MR ODGERS:   Your Honour, by neutral I mean what I said before, which is his testimony did not advance the prosecution case one iota, nor did it diminish the prosecution case one iota.

KIRBY J:   It did diminish the prosecution case.

MR ODGERS:   In my submission, no.

KIRBY J:   Because it resiled from an earlier statement that implicated your client.

MR ODGERS:   Your Honour, I am putting to one side the earlier statement.  I am looking only, for the purposes of this argument, at the testimony.

KIRBY J:   Yes, but if the prosecution accuses and seeks to prove and a witness comes along and does not support the proposition and is a witness who is there and could be expected to have seen something relevant, then it is to that extent diminishing the prosecution case.  It is not neutral.

MR ODGERS:   In my submission, again, one must look not at what one thinks the witness could say, but rather ‑ ‑ ‑

HAYNE J:   But in the box he says, “I did not see these events”.

MR ODGERS:   Precisely, yes, your Honour.

HAYNE J:   “I was there.  I did not see the accused strike Mr Carty with an implement”.

MR ODGERS:   Yes, your Honour.  In my submission, that did not in any way diminish the prosecution case.

KIRBY J:   Of course it did.  If the prosecution has to prove, and beyond reasonable doubt, the onus is on it throughout, and a witness who is an eyewitness close by who could be expected to see something and says no, then, to that extent, the prosecution case is not made out.

MR ODGERS:   It is not, and in the sense that evidence which the prosecution had expected would assist them, would advance their case, has not emerged, I accept.

KIRBY J:   It is not neutral, it is minus.

GLEESON CJ:   But even to indicate or emphasise the confusion that surrounded the events diminishes the prosecution case in terms of cogency, does it not?

MR ODGERS:   In my submission, properly analysed, no.  But, your Honours, I will explain why I make the submission.  Can I take your Honours to the essence of his testimony?

GLEESON CJ:   Where do we best find that, Mr Odgers?

MR ODGERS:   Yes.  I would summarise it and, of course, that is not sufficient, and I will just remind your Honours of the summary that I had made and then I will try to find the relevant – I apologise, I should have worked out precisely where in the appeal book his evidence was.  His testimony is summarised at page 3 of the written submissions and there are appeal book references there which I will take your Honours to in one moment, but in 4.5 of the written submissions on page 3, about the fifth line, it is stated there:

In essence, he said that when he spoke to Carty and was himself stabbed in the neck he did not see anyone else although later he gave the following evidence:

Q.  And I suggest you could see other people near him?

A.  Yeah, there was people, but I didn’t, a lot of people I didn’t notice people.

GLEESON CJ:   Did not the Court of Criminal Appeal deal with this, his evidence?

MR ODGERS:   They may well have, your Honour.

HAYNE J:   Page 1624.

MR ODGERS:   Subject to the words, and I may stand corrected, the words that there was “no one near either himself or his aggressor”, at line 35, subject to that, that appears to be a fair summary of his testimony.  Perhaps I should, as quickly as I can, explain the point I am making.  His evidence at the trial and, indeed, as I will take your Honours to in a moment, really, the consensus of all the evidence at the trial was that the sequence of events was as follows.  There was a confrontation between David Carty and Thaier Sako.  There probably were a number of other people in the vicinity.  Now, by that I mean, at a distance from David Carty greater than Thaier Sako but within a fairly close distance.  I cannot be more precise than that. 

At some point in time, Thaier Sako was stabbed in the neck.  He then, according to virtually all the witnesses except one, departed the scene.  Having been stabbed in the neck, it appears he then walked or staggered away.  Some time later, and I cannot give a figure for that period of time ‑ ‑ ‑

KIRBY J:   He lost consciousness, did he not?

MR ODGERS:   Yes, but that was – yes, he did, at some point.  But what I am saying now is that some time after he had moved away, David Carty was stabbed.  The submission I make is that his testimony was entirely consistent with the prosecution case.  He certainly denied that he was the stabber.  Indeed, I should point out, although it was not reflected in Justice Woods reasons for judgment, he, at one point in the debate, said that Thaier Sako’s testimony made him the stabber.  That was not the case.

GLEESON CJ:   Who might have been the man being referred to in the opening sentences at paragraph 20 there?

MR ODGERS:   David Carty.

GLEESON CJ:   Yes, because David Carty was driving a utility, was he not?

MR ODGERS:   Yes, your Honour, I believe it was a utility.

GLEESON CJ:   Which somebody might describe as a small truck.

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   So the effect of that testimony was that David Carty had attacked him.

MR ODGERS:   It was interesting that he never specifically alleged that David Carty stabbed him.  That is important ‑ ‑ ‑

GLEESON CJ:   He implied it, though.

MR ODGERS:   No, with respect, no, it is an important point, your Honour, because the fact that he said he did not say that made it clear with respect, that he accepted that there were other people in the near vicinity, other people who he was, on his testimony, unable to identify.  That is why I have extracted the earlier evidence about where he said:

Yeah, there was people, but I didn’t, a lot of people I didn’t notice people.

That is, “Yes, there were other people in the near vicinity, I cannot identify them”.  But the fact that he did not say that David Carty stabbed him demonstrates the point that there were other people close by who might have done the stabbing of him.

GLEESON CJ:   But part of his account was to turn David Carty into the aggressor.

MR ODGERS:   His evidence was that there was an aggressive confrontation between him and Carty in which there was some pushing and shoving between the both of them.  Your Honour, I think ‑ ‑ ‑

GLEESON CJ:   But why would that not cut down the Crown case?

MR ODGERS:   Well, in my submission, it would not affect the Crown case in any way.  So, in essence, the submission I make is that on his testimony at trial, the stabbing of David Carty occurred after he had departed the scene.  He could say he did not do it, but he could not say who did.  In my submission, that evidence is entirely neutral; it does not in any way either advance the prosecution case, nor diminish the prosecution case.  It does not advance the defence case, nor does it diminish the defence case.

As I have put the matter in the written submissions, at 5.15, as a matter of simple logic, someone else must have subsequently stabbed Carty.  Sako’s evidence did not tend in any way to exonerate the appellant.  In truth, his testimony did not have any real bearing on the facts in issue at all.  In those circumstances, it is difficult to see how evidence tending to discredit him could have a substantial effect on the probabilities relating to the ultimate issues in the case.  I also pointed out in the written submissions that the very fact that the Crown ‑ ‑ ‑

GAUDRON J:   Well, could I just say something to you?  The appeal book references in your outline of submission seem to be to the voir dire.

MR ODGERS:   Yes, your Honour.

GAUDRON J:   Well, that is no good, is it?  I want to know what was said before the jury.  There may have been differences, I do not know, but it is absolutely no use referring us for this part of your case to what was said on the voir dire.

MR ODGERS:   With very great respect, your Honour, I submit that it is appropriate to do so.

GAUDRON J:   I can tell you that I will not be proceeding – you say that was because?

MR ODGERS:   That was the question before the trial judge.  But in any event, your Honour ‑ ‑ ‑

GAUDRON J:   That was the question before the trial judge.  When I look at your voir dire, I do not see where he says he saw other people.

MR ODGERS:   I am not sure whether AB947 was in the voir dire.

GLEESON CJ:   We know that his evidence began in volume 6 at page 1094.

MR ODGERS:   Yes, therefore, it follows that the reference at 947 was in the voir dire, but, your Honour, I am not sure that it changed.

GAUDRON J:   No, we have to have a look at his evidence in – I do not think you are right to say it is proper to look at the voir dire.  We are now looking at what this man said in-chief and it is what was said in-chief that, on this part of your argument, is relevant to determine whether there was “substantial probative value” or might be, so we do have to look at what was said in-chief.

MR ODGERS:   Yes, I appreciate that, your Honour, and, indeed, as was pointed out yesterday, the ruling was made during examination in-chief, and I see the force of what your Honour is putting to me. 

GLEESON CJ:   It is at the bottom of 1105 and the top of 1106 that you will find the evidence that the Court of Criminal Appeal referred to.

MR ODGERS:   Yes, thank you, your Honour, yes.  I will not read that out.  It may well be that I have to make the submission that the words at the top of 1106:

Q.  Was there anybody else that you saw near him?
A.  No.

I think my submission is that those words were ambiguous and that his answer could mean, “Was there anybody else that you could identify near him?”, but it may that that will be clarified subsequently in the evidence.

HAYNE J:   Page 1107, line 20:

Q.  Before you fell, did you see anybody else?
A.  No.

GAUDRON J:   Yes.

MR ODGERS:.  Well, I certainly rely on the evidence that I have extracted from the voir dire which ‑ ‑ ‑

GAUDRON J:   I do not think you can, sorry.

GLEESON CJ:   The effect of his evidence, at least thus far, appears to me that he left heading peaceably home; he saw David Carty standing near his utility; David Carty swore at him, grabbed him by the neck, pushed him to the ground, and when he got up he found that his neck was bleeding, and up until that stage he saw nobody else?

MR ODGERS:   Yes, your Honour, those appear to be the evidence.  Your Honours, I am obviously not entirely ‑ clearly the proceedings are not going to finish today and I will make every effort, in the time we have between now and when the case comes on again, to clarify all of that, if I could leave it at that.

There is a matter that has been brought to my attention which I should deal with.  I have said that the evidence of the other witnesses at the trial was, with one exception, that Thaier Sako had withdrawn a considerable distance away from the scene before David Carty was himself stabbed.  I will, in a moment, take your Honours briefly to the important witnesses at the trial, but I quickly acknowledge that David Carty’s blood was found on Thaier Sako.

GAUDRON J:   It was?

MR ODGERS:   Yes.

GAUDRON J:   That was in evidence at the trial?

MR ODGERS:   Yes.  However, I would point out, your Honours, that that does not mean he was there in close vicinity when David Carty was stabbed.  There was evidence of a great deal of moving back and forth between David Carty after he had been stabbed by persons who were attending on Thaier Sako, moving back and forth between the prone body of David Carty.  He was subsequently viciously assaulted, even after he had been stabbed.  He was stabbed, I think, 50 - many times and the point I make, of course, is that there was the possibility that blood had been transferred from Carty to Thaier Sako by that process.

If I could take your Honours to the important witnesses.  I do this, both in terms of fitting in Thaier Sako’s testimony into the context of the trial as a whole, but also for the purposes of, in the event it becomes necessary, a consideration of the proviso.

The first point I would make is the one I have made before is that the evidence appears to establish at the trial that Thaier Sako argued with Carty, was himself stabbed and moved away before Carty was stabbed.  I will take you firstly to the evidence of Mr Batterham which is to be found in appeal book 1, page 116, line 22:

After that happened –

that is, after he had seen somebody closing doors –

did you see something else happen out in the parking area?
A.  Yes.

Q.  What did you see?
A.  Two guys standing behind a car, and there was one guy seemed to be going forward, lunging towards – then there was another guy coming from behind and then he started doing the stomping.

Q.  You saw two guys standing behind a car?
A.  Yes.

Q.  Did you notice anything about them, how would you describe these two?

He has given a description of, firstly, one man and then another.  Over the page at 117:

Q.  And he seemed to lunge towards the other guy?
A.  Yes.

Q.  What happened after you observed him lunge at the other guy?
A.  That is when another guy, he wasn’t far behind, he come over and he started stomping on him.

Q.  Wait a minute.  After the lunging, did something happen to the second man?
A.  Oh yes, he fell down.

And then importantly, at page 126 – can I just impose at this point?  Batterham is describing, essentially, two men attacking David Carty.  One man lunging, one man stomping.  Then, at page 126, after he has described what he saw, seeing this incident, at line 29:

Q.  And did you subsequently walk over to the Casino Bar entrance?
A.  Yes.

Q.  When you walked over there, had the fighting apparently stopped over where the man David Carty fell?
A.  Yes.

Q.  And what did the men that were attacking him do after they stopped kicking him and attacking him, did you see them?
A.  No, I think they just walked off and that, yeah.

Q.  And when you went over the Casino Bar entrance, what did you see?
A.  There was a guy on the ground holding his neck, he had blood coming out of it.

Q.  Was his shirt open?
A.  Yeah, I think it was open, yeah.

Q.  Was he actually out on the footpath outside the Casino Bar door?
A.  On the footpath, yeah.

Q.  Had you seen that man injured before that?
A.  No.

Q.  Had you seen him being carried or anything before that?
A.  No.

Q.  Were there other people standing with him?
A.  Yes.

There can be no doubt that he was describing Thaier Sako.  The important point is that he had not seen him before and, therefore, he plainly was not one of the two men attacking David Carty before he was stabbed and fell down.  The inescapable inference is that Thaier Sako was not in the vicinity of the stabbing at the time that David Carty was stabbed.  I should say that Batterham subsequently identified the two men, the lunger and the stomper.  The lunger he identified as a man called Amir Yaco, and the stomper as a man he identified as Thamir Sako, the brother of Thaier Sako.

The next witness is Mr Davies, and your Honours will find him at page 72 of the appeal book.  At line 15:

Q.  So you could see out into the parking area?
A.  Yeah

Q.  What did you see?
A.  What did I see?

Q.  Yes?
A.  When Mick said, “it’s on”?

Mick, was Mick Batterham.  Batterham had said to Davies, “it’s on”, some reference plainly to some kind of altercation occurring in a parking lot.

Q.  Yes?
A.  I saw a man getting hit.

Q.  This man – did you notice anything about his dress – who was being hit?
A.  No.

Q.  Where was he in the parking – was he in the parking lot?
A.  Yes.

Q.  How far was he away from you?
A.  It would have been about 20 yards.

Q.  Who was hitting him?
A.  A group of middle eastern people.

Q.  Can you estimate how many you saw when you first looked out?
A.  Twenty-ish, maybe.

Then he goes on to describe what he saw.  Over the page at line 20:

Q.  What else did you observe about those people?
A.  They were dragging, carrying, I don’t know what the right words are, somebody who had blood all over his shirt along the walkway in front of the Tavern and—

Q.  Did you see them do anything with him?
A.  Then that person went out of my sight.

Q.  How long after you saw the one man being – was the man that was being hit, was he on his own apparently?
A.  As far as I know, yeah.

Q.  How long, after you first saw him being hit, did you see these men helping somebody with blood on him back towards the casino?
A.  Two or three minutes.

Q.  Two or three minutes?
A.  Yeah.

Q.  How long did you watch that for, that group walking back?
A.  I just saw somebody being dragged back with blood all over him and I looked down, I couldn’t see where they were taking him and I looked back over to where the car was and there was still three, maybe four people around the person.

Over the page, line 4:

Q.  I think you said initially when you saw him- -
A.  He was standing.

Q.  -- he was near the back door --
A.  Mm-hm.

Q.  -- of the driver’s side of the car.  Did he remain in that position or did he move?
A.  He went further.

Then line 21:

Q.  With the punching, did you see where they were punching him?
A.  Round the face.  I mean, I have got to talk about initially and you know – initially it was in the face, in the torso….round the – you know, the head.

Line 36:

Q.  After you – I think you said that you had watched this fight going on, there was a number of men, six to eight I think you said, men punching this man on his own.  You saw another man being dragged –

Line 50:

Q.  And you saw a man being carried or dragged back towards the Casino Bar door?

Then it continues, and finally and importantly, on page 75, line 23:

Q.  The man that was being attacked, did he remain standing?
A.  For about two to three minutes.

Q.  This is two to three minutes from when you first started watching it, or after the man was dragged over to the Casino Bar; was it either of those?
A.  The second.

Your Honours, that evidence shows, in my respectful submission, clearly, that two to three minutes after Sako had been dragged away from the incident, David Carty was still on his feet and was only then stabbed fatally.

KIRBY J:   At some time will you give us the references to where the blood was found on Sako’s garment?

MR ODGERS:   Yes, your Honour.

KIRBY J:   Because, of course, the other hypothesis that it may have been open to the jury to accept was that, notwithstanding this evidence, that he was in fact there, present, when the stabbing took place and saw it, and this is consistent with his original statement to police and inconsistent with his sworn testimony.

MR ODGERS:   Yes, your Honour.  There is one witness, Constable Auld, who I will come to in a moment, if I have time, who gave evidence which would tend to put Thaier Sako close by at the time that David Carty was stabbed.

GLEESON CJ:   The hypothesis would be that he got his own neck wound, not because David Carty attacked him, but because there were a lot of knives being employed in this attack.

MR ODGERS:   Yes, your Honour.

GAUDRON J:   Including, I think, his own machete that he dropped.

MR ODGERS:   Yes.

KIRBY J:   Threw away, really, rather than just dropped.

MR ODGERS:   Well, yes, his evidence was, and I think other people supported it, that he threw it away.  Can I take your Honours to the evidence of Tony Bakos?  He is in volume 2 at page 165.  Just one thing, I will not take your Honours away from volume 2 but I should have added that Davies, when asked to identify the twenty‑ish people who he saw attacking David Carty, identified two of them as Thamir Sako and Amir Yaco, the two men who had been identified by Batterham as the initial attackers.  But, of course, Davies only saw the incident after it had begun.

KIRBY J:   Did none of this group of the Assyrian Kings come to the rescue of Mr Carty?  Did none of them call them off?  Did not a single one of them say, “Enough is enough”?

MR ODGERS:   I think the answer to that is, no.

KIRBY J:   Just appalling.

MR ODGERS:   Yes, your Honour.

McHUGH J:   It was an Asian woman, was it not,…..stopped, tried to interfere.

MR ODGERS:   A woman, Marilou Capuyan, who I think was an employee of the tavern, who attempted to intervene.  Constable Auld attempted to intervene and she was assaulted – she was seriously injured, and I will return to her evidence in a moment, but, yes, it was a terrible, terrible incident. 

Your Honours, at page 165 of the appeal book, the evidence of Tony Bakos – now I should impose here that, of course, he was one of the people I referred to earlier as having given a record of interview and then going back to the police to give a subsequent interview in which he implicated the appellant.  His evidence at 165 is this, line 10:

Q.  And as you were talking to them,

that is, other people who were called Assyrians –

did something happen to attract your attention elsewhere?
A.  Yes, I just looked back and there was like arguing going on.

Q.  Arguments going on, where?
A.  In the parking lot.

Q.  Parking lot?
A.  Yes.

Q.  And how far away from you was the argument:
A.  About seven to ten metres, something like that.

Q.  And who was involved in the argument that you saw, how many people?
A.  There was Eddie.

Q.  Eddie?
A.  Yes.

Eddie refers to Eddie Esho, who I have mentioned before.

Q.  How many were there?
A.  There was three.

Q.  Three?
A.  Yes.....

Q.  Sorry, were there three people arguing amongst themselves?
A.  No.

Q.  They were arguing with someone else?
A.  Yes.

Q.  Who was the person they were arguing with, did you recognise him?
A.  Yes, David Carty.

Q.  You know him as David Carty?
A.  Yes.

He describes David Carty.  He says he spoke to Dennis, who is Dennis O’Shana, who I have also mentioned before, and then at line 36:

Q.  After you turned around to tell Dennis, what did you say after that?
A.  They started arguing and after they started pushing and after they started a little brawl there.

Q.  Started a little brawl?
A.  Yes.

Q.  Who did you see pushing?
A. Like when David – like Carty, he pushed.

Q.  He pushed somebody?
A.  Yes.

Q.  Who was that?
A. Thaier.

Q.  That is Thaier Sako?
A.  Yes.

Q.  Did he push him hard or how would you describe the push?
A. Just a normal push.

Q.  And did you see Thaier move back?
A.  Yeah.

Q.  How far?
A.  I don’t know, just move back.

Q.  Did he stay on his feet?
A.  Yes.

Q.  And what did you see after that?
A.  Like he pushed him and Thaier walked forward.

Q.  Thaier walked forward?
A.  Yes, tried to swing, but he missed.

Q.  Tried to swing at him, did he?
A.  Yes, but he missed.....

Q.  What happened after that?
A.  After, like I turned around again to Dennis and told him, “There’s, you know, a, there’s a brawl going on”, after when I try to walk back towards the brawl, all I see was Thaier just walked up with his neck.

Q.  You saw Thaier holding his neck, did you?
A.  Yes.

Q.  Sorry, what did you see about Thaier when you looked back?
A.  Holding his neck.....

Q.  You went over to him, did you?
A.  Not close to him, just looking at him and told him where to walk, you know and I walked with him to put – you know, so he can sit down somewhere.  I walked him to the door of the pub and he just laid there with his neck and he was just screaming.

Q.  He was just screaming?
A.  Yes.

Q.  And after you did that, did you notice something else?
A.  What do you mean?

Q.  Did you see anything happening in the parking lot after that?
A.  Yeah, I turned around and I saw Eddie, and jumping up and down.

Eddie is a reference to Eddie Esho.

Q.  Saw Eddie jumping up and down?
A.  Yes.

Q.  Did you see anybody else?
A.  I don’t remember.

Q.  Right, and when you say “jumping up and down”, what was he doing?
A.  Punching.

Q.  Who was he punching?
A.  David Carty.

Q.  And was David Carty defending himself?
A.  Yes.

Q.  And how long did that go on for?
A.  I don’t know, I don’t remember, I didn’t like, pay attention.

And he goes on to give further evidence, again, in my submission, clearly showing that after Thaier Sako had departed the scene, receiving his injury and screaming, that David Carty was still on his feet being punched by Eddie Esho.

KIRBY J:   That is if you accept this evidence.

MR ODGERS:   Of course, your Honour.

KIRBY J:   The jury had other evidence.

MR ODGERS:   Well, your Honour, no, with respect, you will find ‑ ‑ ‑

KIRBY J:   Well, they had the blood on the garment of Mr Sako.

MR ODGERS:   Yes, your Honour.

KIRBY J:   And when they got it, they had Mr Sako’s inconsistent statement made at a time much closer to these events to the police, although, as you point out, in circumstances which maybe cannot be described as fresh, which were not part of the res gestae, in the old words, and which were self-interested.

MR ODGERS:   Your Honour, I appreciate that.  I am going through this exercise for two reasons, one, because of the issue about whether or not his evidence was neutral, and my submission is that it was, and I am using this evidence to explain that, but also for the purposes of a proviso which obviously may arise in this case.

GLEESON CJ:   What exactly do you mean by neutral, in this context?

MR ODGERS:   That his evidence did not either advantage or disadvantage the prosecution case.

GAUDRON J:   Or the defence case.

MR ODGERS:   Or the defence case.

GLEESON CJ:   It could not have been used either way by either side?

MR ODGERS:   Yes.

GAUDRON J:   That is his evidence‑in‑chief you are talking about, before one gets to the cross‑examination and so forth?

MR ODGERS:   Yes.

KIRBY J:   Well, you might be right, but with a person who is, on one view of the evidence, supposed to be there, that was one of the Assyrian Kings, that was originally, certainly on his own statement, involved, that has the blood of the deceased on his garment, the fact that he does not come up to see or state anything, that he saw anything.  Well, it does not help the Crown case.

MR ODGERS:   No, it does not.  I accept that, your Honour.

KIRBY J:   It does not help it at all and, if it does not help it, the Crown bearing the onus of proof, it hurts the Crown’s case because he is the person who ‑ ‑ ‑

MR ODGERS:   No, with respect, I submit not.

KIRBY J:   You keep saying you will not accept it, but he is the person who the Crown has called, presumably because he will, having been there, be able to say something to assist the Crown.

MR ODGERS:   Your Honour, that is precisely the point.  They would not have called him but for their intention to get in the record of interview and to rely on it for a hearsay purpose.

GLEESON CJ:   Why does not casting David Carty in the role of aggressor have the potential to damage the Crown case?

MR ODGERS:   I do not think self‑defence was run in this trial.  I do not think that was really an issue in any meaningful sense in the trial.

KIRBY J:   It was never suggested Mr Carty had a knife, was it?

MR ODGERS:   I do not think the defence case – no, I am looking at Mr Waterstreet and the answer to that is no.

GLEESON CJ:   Well, now, Mr Odgers, we have reached the time mentioned yesterday.  We will adjourn the further hearing of this matter to a date to be fixed by arrangement between counsel and the Registrar.  I will be back in Sydney tomorrow and it should be possible, if counsel communicate with the Registrar and the Registrar communicates with me, tomorrow, to fix a date for the further hearing of this matter.

MR ODGERS:   Yes, may it please the Court.

GLEESON CJ:   We will adjourn to reconstitute.

AT 11.31 AM THE MATTER WAS ADJOURNED