Ellis v The Queen

[2004] HCATrans 488

[2004] HCATrans 488

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S323 of 2004

B e t w e e n -

DARREN DOUGLAS ELLIS

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 DECEMBER 2004, AT 10.20 AM

Copyright in the High Court of Australia

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

MR G.E. SMITH, SC:   If the Court pleases, I appear for the respondent with my learned friend, MR G.I.O. ROWLING.  (instructed by Solicitor of Public Prosecutions (NSW))

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS: Your Honours, the issue before the Court today is whether a court in applying section 101(2) of the Evidence Act 1995 (NSW)
which has the same provision, I should add, in the Commonwealth Act and also in the Evidence Act (Tas) – whether a court performing that task, applying that balancing test in 101(2) in relation to what is called “tendency evidence” or “coincidence evidence”, how it is to take into account common law authority on what is conventionally called propensity and similar fact evidence.

GLEESON CJ:   Mr Odgers, in the notice of appeal on page 964, in each of the two grounds, there is a reference to whether the trial judge properly applied a certain test.

MR ODGERS:   Yes.

GLEESON CJ:   Properly applied a certain test in doing what?

MR ODGERS:   In determining the admissibility of the tendency and coincidence evidence which was adduced by the prosecution.

GLEESON CJ:   Thank you.

HAYNE J:   And where do we find the ruling?

MR ODGERS:   Your Honours, appeal book 2, page 399. 

HAYNE J:    This was a judgment  ‑ ‑ ‑

MR ODGERS:   Your Honour, I do not want to deflect from the question that that is the judgment.  I was going to do a little preliminary introduction.

HAYNE J:   No, but I want to know where the ruling is.

MR ODGERS:   Your Honour, the ruling is at page 399.

HAYNE J:   And what was the application that was the subject of the ruling?

MR ODGERS:   It was an application that his Honour ruled that evidence relating to one count of break and enter not be admissible, or not be admitted, in the trial, or trials, of the other counts of break and enter.

McHUGH J:   But there was only one indictment.

MR ODGERS:   Quite.

McHUGH J:   It had originally 13 counts and then it was reduced to 11, was it not?

MR ODGERS:   Yes.  It was foreshadowed by counsel for the appellant that if his Honour ruled that the evidence was not cross‑admissible from one count to another, that there would be an application to separate the trials and, indeed, that application was essentially made and his Honour did separate the trials of two of the 13 counts which he ruled were not cross‑admissible.

HAYNE J:   Well, how, on a trial of an 11‑count indictment was evidence of the commission of each of the offences charged not admissible, and at root that is the point which, it seems to me, you seek to make.

MR ODGERS:   Your Honour, the question which the judge had to determine at this stage when he made this judgment was whether or not the evidence was to be regarded as cross‑admissible.  If it was not, it was well‑established under the authorities of this Court in Sutton and other cases that it would be appropriate, absent unusual circumstances, to separate the trials of those counts.

McHUGH J:   That is the problem, is not it, that the notice of appeal does not raise the questions that you seek to raise or that, really, it does not raise what seem to be the real issues, namely, as to whether the trial of these counts should have been severed or whether the judge’s directions were erroneous.  Clearly, all this evidence was admissible.

MR ODGERS:   In a trial of multiple counts?

McHUGH J:   Yes.

MR ODGERS:   It may be that, your Honours, I have misconceived the precise nature of the order that we are seeking or the challenge that we are making, but I have tried to make it clear in what I have just said that there was a preliminary issue to the question of separation of the counts which was whether or not the evidence was cross‑admissible.

McHUGH J:   I understand that, Mr Odgers, but it just shows part of the problem about these preliminary questions.  I would have thought that the way it should have been raised was in an application to sever the indictment and that was what the judge should have ruled on.  Instead, there seems to have been this abstract ‑ ‑ ‑

MR ODGERS:   It was done in a fairly informal way and I have to accept that.

McHUGH J:   Yes, you are stuck with it.

MR ODGERS:   But, with respect, your Honour, it was appreciated that the two questions were wholly interrelated and there is a practical matter that the question of whether the counts should be severed turned on whether the evidence of one count was admissible in respect of the charge of the other counts. 

HAYNE J:   The decision to sever, if the evidence was not, as you put it, cross‑admissible, would be a discretionary decision.

MR ODGERS:   Yes.

HAYNE J:   It would not be an inevitable consequence of concluding that evidence on count 1 was not admissible in respect of count 2 that the two counts be tried separately.

MR ODGERS:   No.

HAYNE J:   Thus the questions engaged turn immediately upon the question of discretion to sever or not, which in turn raise questions about what directions might be given, which in turn, where the presentment is not severed, may have engaged some question about whether sufficient directions were given at the trial of all counts.  But the only question tendered to the Court of Appeal and the only question tendered here is one of admissibility, where radically different questions arise.

MR ODGERS:   I do not know if this is an answer to what has been put to me, but it was an essential precondition to an argument that there should be a severing that there be a ruling that the evidence was not cross‑admissible, and that when the ruling was made that it was cross-admissible in respect of 11 of the 13 counts, essentially the appellant lost the opportunity to then proceed with an argument that his Honour should exercise his discretion to separate the trials in accordance with the well established authority which establishes that usually a trial should be separated in such circumstances.

McHUGH J:   But that is the point, is it not?  That even if it was admissible, the judge still had a discretion, did he not?

MR ODGERS:   I have conceded that.

McHUGH J:   Yes.

GLEESON CJ:   If you look at page 924, you see the sole ground of appeal that was before the Court of Criminal Appeal.

MR ODGERS:   Was that 920?

GLEESON CJ:   Page 924, volume 5.  Now, as a ground of appeal relating to the wrongful admission of evidence, that is in an appropriate form; the only difficulty with it was that it was absolutely bound to fail because the evidence in question was so obviously admissible.  As a ground of appeal in relation to a decision not to order separate trials, that is purely theoretical.  It does not even refer to the decision not to order separate trials.  It simply raises a hypothetical point of law. 

MR ODGERS:   I understand that, your Honour.  I have explained as well as I can how it was that this matter was approached in the way it was.  It was perceived by the representatives of the appellant that it was an essential precondition to challenging the way that the trial had proceeded to persuade an appeal court that there had been an error in the ruling that the evidence was cross‑admissible.  I now appreciate, which I had not appreciated before, that that was not the end of the section, that there were follow‑on questions which would then have to be answered, which was, “Well, assuming it was not cross‑admissible, should the trials have been separated?”, which raises the challenge to a determination that they should not be separated.  But I can only say that that was the reasoning that was adopted by the representatives of the appellant ‑ ‑ ‑

KIRBY J:   Can I ask, does this arise out of some understanding between the appellant and the Crown, because I do not see any hint in the Crown’s submissions?  They join issue with you on the matters you wish to raise in the appeal.

MR ODGERS:   Your Honour, the point that is being put to me now has never been raised by anybody until now.

KIRBY J:   Not by the Crown earlier?

MR ODGERS:   No.

KIRBY J:   Not by the Crown in the Court of Criminal Appeal?

MR ODGERS:   No.

KIRBY J:   Not by the Court of Criminal Appeal?

MR ODGERS:   No.

KIRBY J:   Not by the Crown’s submissions in this Court?

MR ODGERS:   Never.

GLEESON CJ:   It is difficult to see from the reasoning of the Court of Criminal Appeal what the Court of Criminal Appeal was actually deciding as distinct from what point of law it was accepting or rejecting.  Where do we see that part of the reasoning of the Court of Criminal Appeal where it identifies and upholds a decision of the trial judge?

MR ODGERS:   Your Honour, I am struggling, as your Honour appreciates, because there is no doubt that the Chief Justice did not come at the end of his reasons to a precise formulation of the order that he was making of other than the appeal have it should be dismissed, nor did he precisely indicate the basis upon which the appeal should be dismissed.  I can only say at this stage ‑ ‑ ‑

GUMMOW J:   Page 931 indicates the starting point, but it does not seem to reach a destination.

MR ODGERS:   I am sorry, your Honour?

GUMMOW J:   Page 931 indicates the starting point, paragraph 2, but then that does not seem to be linked to any ultimate destination that is reached in the judgment.

MR ODGERS:   Can I say this, without taking your Honours to the precise passages, that my understanding of what happened in the Court of Criminal Appeal was that the argument was advanced that the trial judge had erred in law in his approach to the question of cross‑admissibility that I have used that term.  That was the matter that was contested in the Court of Criminal Appeal.  The Chief Justice and the other members of the court concluded that there was no error in his approach to the determination of cross‑admissibility ‑ ‑ ‑

GUMMOW J:   What do you mean by cross‑admissibility, by the way?

MR ODGERS:   The admissibility of evidence relating to one count, that is, evidence that certain things happened, that a property was broken and entered, that certain things happened in relation to that property, that there was evidence relating to renting of cars at the same time as the commission of that offence, evidence relating directly to that particular offence, whether that was admissible in respect of a separate charged offence, on a separate date and a separate place.

KIRBY J:   No doubt that explains why the Chief Justice below did not go on to consider what the consequences would be if he had reached a different view.  Had he reached the view that there was a problem under the Evidence Act then the question would be to clarify what should be done in those circumstances, but he did not reach that point and that rather explains to me why you and the Crown have not hitherto raised the point that the Court has now raised with you this morning.  You have been treating this as a severed question, and you have sought to have a ruling on the severed question, but the procedural problem really lies with or before that severed question.

MR ODGERS:   Yes.

HAYNE J:   Now, the severed question is stated at a high level of abstraction, and stated at such a level of abstraction that it reveals, I suspect, that the question is not procedural but real and radical.  Let me amplify it so that you understand the point I seek to have you consider.  You speak of the evidence being cross‑admissible without further articulating what evidence of what witness is to be admitted or rejected.  Let me simplify the case to a two count case in which the same method of breaking and entering is used, but where, in respect of count 2, there is other circumstantial evidence; for example, hiring cars, cars which are observed in the vicinity, being driven by persons not dissimilar to the accused.

Now, the question of admissibility is more refined than whether evidence on count 2 is admissible in proof of count 1.  The question of admissibility is whether evidence of witness X saying evidence content A, B, C is to be received or not received.  To frame the question as you have, as cross‑admissibility of evidence relating to counts, reveals, I suggest to you, that the question truly is one of severance, of presentment, that is to say, whether it is just or unjust that the trial of separate counts should occur simultaneously.  It was that which the trial judge considered at 399 to 400, and to frame the question at the abstract level of admissibility of evidence obscures, rather than illuminates, the basic problem that emerges.

Now, that is the area for debate.  I have made the point.  I leave it to you to deal with.

MR ODGERS:   My submission is that similar, perhaps not identical, issues arise whether one characterises it as a question of admissibility or a question of severance.  While I accept that on the question of severance there is a discretion in the court whether or not it should sever, it will be very relevant to that question to determine whether or not the evidence of witness A, who gives evidence of property being broken into on a particular day and a particular place, whether or not a jury is entitled to take into account that evidence in respect of another offence committed in a different place and a different time.

KIRBY J:   That has to be your submission, does it not, that there are two doorways and you are entitled to have the advantage of each of them?  There is the first doorway about severance, and that presents for an accused all sorts of problems because of the discretionary character of that decision, and therefore you have elected not to challenge that, but you challenge the second doorway, severance not having been ordered in all counts.  You are entitled to say, once you are in the trial process, the law of evidence applies, and you have to apply the Evidence Act and if it is not admissible in the trial, well, that may have been a reason to have severed but you are now in the trial and you are entitled to take your points on the Evidence Act.

GLEESON CJ:   But that is a point you are bound to lose on, is it not, because once 11 counts were being tried together it was absolutely inevitable that all this evidence would be admissible.  If you get past a complaint about severance, you must be into a complaint about the judge’s directions to the jury.

MR ODGERS:   I think that is inevitable, so I do not adopt what your Honour Justice Kirby has put to me.

KIRBY J:   I am just wondering why all these clever people who have looked at this matter before this minute have taken this view and I am just trying to explain it to myself.  I do not see a difficulty with two doors and you having two bites of the cherry.  The accused has that many times.

McHUGH J:   I think the difficulty, Mr Odgers, is that when we sit down to write a judgment, supposing we uphold your submission ‑ ‑ ‑

MR ODGERS:   Yes.

McHUGH J:   What do we say?

MR ODGERS:   Yes.  I am trying to see through the answer now and one thing that comes to mind, your Honour, I am not sure this is - I may be shot down in flames, that is the danger of doing things on your feet and not anticipating a problem - is that if we persuade your Honours that the trial judge erred when he considered the question of whether or not evidence of witness 1 could be used in relation to count 1, could be used to prove commission of count 2, then the question arises:  if he had not made the error, what would have happened, or rather, did the appellant lose a chance of the trial judge, if he had applied the correct test, ruling that, hypothetically, witness 1 could not be used to prove count 2, and then, did the appellant lose a chance of the trial judge then in the exercise of his discretion severing the two counts, so that the problem, I think, that the appellant faces is that since that issue was not determined by the Court of Criminal Appeal, all that the appellant could hope for from this Court would be to have the matter remitted to the Court of Criminal Appeal to determine what would flow from what I have just put to your Honours.

GLEESON CJ:   Yes.  The problem arises clearly from the terms of the statute.  If you look at sections 97 and 98 of the Evidence Act, they do not just talk about the evidence being admissible.

MR ODGERS:   No.

GLEESON CJ:   They talk about the evidence being admissible to prove something.

MR ODGERS:   Can I interrupt, your Honour?  That is no different from the hearsay rule.

GLEESON CJ:   Yes.  Now, if 11 counts were proceeding together, I should have thought it would be absolutely obvious that evidence of what happened on the 11 occasions was admissible.  The question is not whether the evidence was admissible.  The question, to use the language of the statute, is what was the evidence admissible to prove?

MR ODGERS:   Yes.

GLEESON CJ:   Presumably, in his directions to the jury - and I have not read them, I must admit - the trial judge gave the jury some information to the effect that they could use the evidence in relation to count 1 to assist them to come to a conclusion in relation to count 2.

MR ODGERS:   He did.

GLEESON CJ:   So it is a complaint about the judge’s directions to the jury.  The other matter that needs to be borne in mind is that the question is not just whether the judge erred in applying the wrong test.  The question is whether, if he had applied the right test, he would have come to a different decision.

MR ODGERS:   I understand that, although we say that the question should be, if it is really an application of the proviso that is operative, whether or not he inevitably would have, nonetheless, admitted the evidence.

McHUGH J:   But it is not really that, is it, Mr Odgers?  It is that the procedure is flawed from the beginning.  It is not like the procedure adopted in De Jesus or in Sutton or Verma, where the applications focused on severance from the start and these questions, the questions you raise, are relevant in making that decision.  It has turned it upside – the way they did it ‑ ‑ ‑

MR ODGERS:   Your Honour, I can explain perhaps how it transpired as it did, whether that is going to assist this Court in working out where it proceeds next.  At the beginning of the trial, I think the first day of the trial, it was brought to his Honour’s attention that the defence intended to make an application to separate the trials, but it was understood by both the Crown and ‑ ‑ ‑

GUMMOW J:   Was this on 8 October?

MR ODGERS:   Your Honour, I am flying blind.

McHUGH J:   Yes, page 6, I think it is.

MR ODGERS:   Yes, page 6, on 8 October. 

HEYDON J:   The defence application is foreshadowed on page 7, line 36.  Mr Smith appeared for the accused.

MR ODGERS:   Yes: 

depending on the results of the legal argument –

which was an argument going to the question of what I have called cross‑admissibility, although I understand what your Honour the Chief Justice has put to me, that that is not an entirely an accurate description of it –

there would be an application for separate trials in relation to separate matters if my friend’s not successful in establishing that he has got a tendency or coincidence evidence and so the indictment on the thirteen counts is really based on my friend’s assertion that he can establish that your Honour will allow into evidence either the evidence of all of the matters in the brief in either tendency or –

Then his Honour interrupted.  He had to be arraigned, he was arraigned.  Then at page 11, line 10, the Crown Prosecutor indicated:

the application the Crown is making is that your Honour will be pleased to make order that evidence of tendency and/or coincidence of the conduct of this accused be admitted into evidence.

That was conveying the idea that in accordance with sections 97 and 98, the evidence could be used for the purpose indicated in those provisions.  Then exhibits were tendered in respect of that question and then there was a voir dire held to determine that.  During the voir dire, although I cannot put my hand on where it was made clear, defence counsel again raised the proposition that ‑ ‑ ‑

GUMMOW J:   One trouble for you with section 97 is that it is not drawn ‑ ‑ ‑

MR ODGERS:   Sorry, your Honour?

GUMMOW J:   Section 97 is drawn on the understanding that the similar facts are out there.  They are not themselves the subject of a count which is joined.

MR ODGERS:   Yes. 

KIRBY J:   I am beginning to understand that the course of the procedure adopted was that you – a course was taken at the trial that there was first the application was there for severance and then there was the decision to take this procedure whereby there would be a ruling under the Evidence Act and if that ruling went against the Crown then there would be the renewal of the application for severance?

MR ODGERS:   In essence they were heard together, and his Honour understood that they were being heard together because in his ruling ‑ ‑ ‑

KIRBY J:   The ruling would be very relevant to the severance issue.

MR ODGERS:   Well, he did proceed to sever two of the counts on the basis that he had ruled that they did not satisfy the requirements of 97 and 98 and it was understood that he was being asked to sever those counts where he had made a ruling that the evidence did not satisfy the requirements of 97, 98 and 101.

GLEESON CJ:   Just to take further the point that Justice Gummow made, if you wanted some real propensity evidence about your client you would have a look at the remarks on sentence.  He served 11 terms of imprisonment for breaking, entering and stealing. 

MR ODGERS:   Yes.

KIRBY J:   We have not got to the point of admitting that yet. 

MR ODGERS:   No.

KIRBY J:   I see Mr Blunkett wants to do it in England.

GLEESON CJ:   Nobody could criticise the judge for applying the test in the Evidence Act, could they?

MR ODGERS:   Your Honour, no, but that is the issue we want to come here today to argue about, what that means to apply the test in the Evidence Act.  That is what I had come here to argue.  The question is rather how you apply it.

GLEESON CJ:   Well, we seem to have got to the point where it is common ground that the evidence was admissible.

MR ODGERS:   Once the ruling had been made that the trials were not to be severed.

GLEESON CJ:   Well, it was admissible in the trials as they proceeded.

MR ODGERS:   As they proceeded.

GLEESON CJ:   Yes.

KIRBY J:   But you had foreshadowed that you were intending if the rulings were in your favour, to insist upon the separate trials because then you would have the advantage of the ruling under the Evidence Act as relevant to the exercise of that discretion.  So it is really a House v The King point that you did not get an ingredient in the proper and lawful exercise of the discretion for severance because of an incorrect ruling under the Evidence Act about the admissibility of the evidence against your client.  Is that it?

MR ODGERS:   That sounds very much like it, your Honour.  I am hesitant in the sense that I do not want to ‑ ‑ ‑

KIRBY J:   Well, I offered you an olive branch earlier ‑ ‑ ‑

MR ODGERS:   You did and I did not take that one but ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ but it was slapped back in my face but I saw Mr Smith giving you all sorts of little pieces of paper presents from the Crown.  I do not know whether any of those were of any help because he is as complicit in this course as you are.

MR ODGERS:   Yes, he is lucky.  He does not have to answer these questions.

GLEESON CJ:   If you had a ground of appeal before the Court of Criminal Appeal about the directions to the jury, there would have been a Rule 4 question, would there not?

MR ODGERS:   Yes.

GLEESON CJ:   You would have needed leave to raise that ground of appeal?

MR ODGERS:   Can I say in response to that, what happened at the beginning of the trial made it clear that defence counsel was seeking a ruling that evidence in respect of witness one could not be used to prove count 2 – if I have made that clear.  He sought that ruling as a preliminary step in seeking to persuade the trial judge to sever the trials.  It is implicit in that that the defence case was or the defence position was that the jury should not use evidence of witness one to prove count 2 but, of course, no application was made for that at the end of the trial and the directions - because the judge had made the ruling at the beginning of the trial that it could be, so that how the trial proceeded was all contingent on what had happened at the beginning and the ruling his Honour had made.

GLEESON CJ:   Then it follows, does not it, that whether it is open or not to you to make it at this stage, your real complaint is not that the evidence was admitted.  Your complaint is that the counts were not severed?

MR ODGERS:   Yes.

GLEESON CJ:   You also want to complain or want leave to complain about the way the judge directed the jury?

MR ODGERS:   Yes, I think, with respect, that is correct.  Yes, as I understand the situation, there are two fundamental complaints that his Honour erred in not severing the counts and that there was – to take Justice Kirby’s point - a House v The King error because he misconceived the applicable law bearing on that question.  The secondary challenge is - although we had not intended to advance it today - that the trial judge erred in allowing the jury to use the evidence of witness one to prove count 2, and to the extent that Rule 4 is a question, I have given the answer that the submission made at the beginning of the trial seeking a separate trial on the basis that it could not be used again, that witness one could not be used on count 2.  The ruling adverse to the appellant at that stage meant that there was no advantage to be gained from re‑arguing the proposition at the end of the trial in terms of proper directions to the jury.  The judge had ruled that was the end of the matter.

GLEESON CJ:   The decision in Pfennig, as you will have noticed, was a unanimous decision, as was the decision in a lot of these cases where people are in heated disagreement about the meaning of the similar facts rule.

MR ODGERS:   Yes.

GLEESON CJ:   It must be implicit in your argument that if the judge had applied what you say is the proper approach to the Evidence Act, the outcome would have been different on the facts of this case.

MR ODGERS:   Yes.

GLEESON CJ:   At some stage you will need to explain that also.

MR ODGERS:   I understand.

KIRBY J:   You did tend to gloss over the facts a little in your submissions, Mr Odgers.

MR ODGERS:   Which submissions were they, your Honour?

KIRBY J:   The first submissions ‑ ‑ ‑

MR ODGERS:   I do not know that I had a big opportunity to go to all of that, and I will proceed to it now, unless there is ‑ ‑ ‑

KIRBY J:   Well, you had gave us an awful lot of material on what judges have said about the similar fact rule ‑ ‑ ‑

MR ODGERS:   I am sorry, the written submissions, your Honour?

KIRBY J:   The written submissions concerning ‑ ‑ ‑

MR ODGERS:   Yes, I do apologise.

KIRBY J:    ‑ ‑ ‑ the facts of your client were, as it were, touched on but lightly.  Maybe that was because you thought danger lay in that direction.

MR ODGERS:   No, your Honour, not at all.  Because of the way the matter had proceeded in the Court of Criminal Appeal, and we are to a significant extent responsible for that, as is apparent – I am sorry, your Honour?

GLEESON CJ:   You must be leading up to an application to amend something.

MR ODGERS:   I think I must be.  I very much sense that, your Honour.  Precisely the form of the application – can I put that to one side and come back to your Honours?

GLEESON CJ:   Well, not too much later.  Yes, you are not necessarily of absolute certainty to get leave to amend.

MR ODGERS:   No, I do understand.

GLEESON CJ:   Shall we adjourn for five minutes to enable you to consider what kind of application you want to make?  If you have reached a view as to what kind of application you want to make, you can state it onto the transcript, and if you ultimately get leave to make some amendment, then you can put it in writing after the luncheon adjournment.

MR ODGERS:   Yes.

GLEESON CJ:   All right.  We will adjourn for a short time.

AT 11.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.15 AM:

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, we would be seeking leave to amend the notice of appeal so that the following three grounds of appeal would be advanced.  The first is that the Court of Criminal Appeal erred in failing to hold that a miscarriage of justice resulted from the trial judge holding that certain evidence could be used as tendency and coincidence evidence.

The second ground is the trial judge erred in failing to sever counts in the indictment.  I have not written “the counts”, your Honours, because we have looked at what defence counsel put to the judge.  He did not seek to have every count separated, he sought to have them separated into groups.  Over lunch, if leave is granted, we will write down precisely what he sought to do in terms of separating them.

Thirdly, the trial judge erred in directing the jury that evidence could be used as tendency and coincidence evidence.

McHUGH J:   What orders would you seek?  What is the ultimate order that you would seek from this Court?

MR ODGERS:   The appeal be allowed, a new trial ordered, or, alternatively, the matter be remitted to the Court of Criminal Appeal.

GUMMOW J:   To do what?  To further deliberate on the only ground that was before them?

MR ODGERS:   Yes, your Honour, but subject to this, that if the matter had been litigated in front of the Court of Criminal Appeal in the way that it has now become clear it should have been, no doubt if the court had accepted the argument we advanced, then the next question that would have been asked of us was, “Well, what is the appropriate step that should follow?”.  No doubt the conclusion would have been reached that we should at that point have put on grounds of appeal in that court similar to the ones that we have now drafted, and then the court would have proceeded to consider – if they granted leave to amend the grounds of appeal in the same way – would have then proceeded to consider the question whether or not there was a miscarriage of justice – I am sorry, I withdraw that.

The ground in the Court of Criminal Appeal was that there was a miscarriage of justice resulting from an error made by the trial judge.  The question would have been, “Well, what was the miscarriage of justice?”, and no doubt the answer that would ultimately have been given was that the trial judge erred in his discretionary judgment ‑ ‑ ‑

GUMMOW J:   The ground was:

applied a wrong test in determining whether to admit certain tendency and coincidence evidence, and wrongly admitted that evidence.

MR ODGERS:   I am sorry, your Honour, my recollection of the ground ‑ ‑ ‑

GUMMOW J:   That was the ground in the Court of Appeal, page 924.  The Chief Justice referred you to it earlier.

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

a miscarriage of justice in that the learned trial judge applied a wrong test –

Again, it may be that that was not expressed as well as it should have been, but what would have happened, I apprehend, is that if the court had accepted the argument that the judge had applied the wrong test, the question would have been, “Well, what flows from that?”, the argument would have been that the appellant lost a chance of having the trials severed, and, if necessary, there would have been an amendment of the grounds of appeal to advance that more precisely.

McHUGH J:   That is a miscarriage ground where arguably the proviso does not apply and where you have the onus of establishing a miscarriage of justice.

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

McHUGH J:   And I think you may need a more specific order than just a new trial, because if you succeeded on your first ground you would have to be looking at some order in relation to the indictment.

MR ODGERS:   Your Honour, it is appreciated.  I have not worked out what the order was and I should have done that during the moment I had.

GLEESON CJ:   Mr Odgers, am I right in thinking – this is only an impression I gained from a quick look at Acting Judge Holt’s judgment ‑ ‑ ‑

MR ODGERS:   Acting Judge Holt, the trial judge, yes.

GLEESON CJ:    ‑ ‑ ‑ that the argument before him was conducted on the basis that it was accepted that if this was treated as tendency or coincidence evidence, inevitably there would be a joint trial – I mean by that a trial of all 11 counts.  On the other hand, if he took a contrary view, it was by no means inevitable that there would be separate trials.

MR ODGERS:   I do not know I can concede that.  I have not looked, as I should have, closely enough at what was put by counsel for the Crown or defence counsel on that.

GLEESON CJ:   That would be the case, would it not?

MR ODGERS:   It is correct, your Honour, as I have conceded, that the judge has a discretion whether or not to sever the trials.  The defence counsel was relying on the authority of this Court in Sutton and other decisions which, defence counsel contended, provided powerful arguments supporting severance.

GLEESON CJ:   We had better see what Mr Smith has to say about your application.

MR SMITH:   Your Honours, regrettably we oppose it.  These matters were not argued before the Court of Criminal Appeal and so we have not been given the opportunity to respond at the intermediate appellate court to these matters.  Many of them were not re‑raised at the trial after the ruling.  There were no further applications as the case went on, or anything of that sort.

KIRBY J:   Yes, but did you raise the points that have now been raised by this Court before the Court of Criminal Appeal and say that all of this has been really predetermined by the severance question?

MR SMITH:   I am not sure that we did that.

KIRBY J:   I did not see a hint of it.

MR SMITH:   We certainly said there was no miscarriage of justice and argued, as I understood it, that the material would have been admissible whatever test had been applied.  Mr Rowling addressed on the actual factual evidentiary situation, Mr Cogswell addressed on the law, but Mr Rowling put that there was no miscarriage of justice and it is certainly in the written submission that was made by the Crown.

KIRBY J:   But that is not quite the point.

MR SMITH:   No.

KIRBY J:   The question is whether the procedural point that has been raised this morning was ever advanced by the Crown before the Court of Criminal Appeal.  There is not a hint of it in your written submissions to the Court.

MR SMITH:   No, severance was not raised, but normally the Crown meets the appeal, the grounds that are lodged rather than ‑ ‑ ‑

GLEESON CJ:   Well, the problem is that at an appellate level this issue that was dealt with by the Court of Criminal Appeal has for a long time been an answer in search of a question.

MR SMITH:   Yes.

GLEESON CJ:   The question arises often enough at the trial level, but when it gets before an appellate court, the court has to look at whether or not it is a material question.

MR SMITH:   Yes.

GLEESON CJ:   The Court of Criminal Appeal mentioned the fact that there have been a number of unsuccessful applications for special leave to appeal to this Court that have failed on the basis that there was no suitable vehicle.

MR SMITH:   Certainly that is an argument we put to this Court on the special leave application, that this was not a suitable vehicle, because it was a joint trial with 11 counts of similar activity.  Whilst my friend argues that severance should have taken place, it is not uncommon for joint trials to occur with multiple counts where the trial judge gives directions for the juries not to use material as discrete to one offence in finding guilty on another offence.

Now, I agree that this was a very powerful conglomerate of evidence and so similar that it would be very difficult, but, nevertheless, there was not a direction sought along those lines either, it was just severance.  These are matters that it is difficult, we submit, for the Crown to meet in the High Court when the matters really have not been litigated below.  Crampton, I think is the case where this Court said there had to be exceptional circumstances before leave was granted, and I submit that this is not a case where exceptional circumstances can be made out in that that issue of severance was argued at the trial and lost, and was not raised again.

KIRBY J:   Yes, I take the force of what you have said, and it is a very powerful argument, but the argument to the contrary is wrapped up in the severance was the determination of whether this evidence was going to get in.

MR SMITH:   Yes.

KIRBY J:   And that, therefore, as it were, it was an ingredient in the severance decision and has been tendered to the Court of Criminal Appeal and to this Court as a separate question that is potentially important.  If, for example, the Court were of the view that all of this talk about Pfennig and common law decisions is irrelevant to the consideration of the statute, which is your primary submission ‑ ‑ ‑

MR SMITH:   Yes.

KIRBY J:    ‑ ‑ ‑ then it would be as well if that were said, would it not?

MR SMITH:   Well, yes, your Honour.

KIRBY J:   That, as I understood it, was the point upon which the appellant and you came to this Court with your agreement that that is how we would deal with it.  If, in fact, the appellant were to succeed and persuade us that common law rights remain unless they are taken away and it is involved in the statute and so on, then you have to say, well, where does that lead in this case?  But if the very strong submission you have made is sustained, then that is an important thing for this Court to say and it puts at rest all this talk, at least in the States that have the statute, of Pfennig and the common law.  You just look at the statute. 

MR SMITH:   Your Honour, we are not seeking to avoid this Court making a decision on the proper interpretation of the Evidence Act, certainly not.  We want it to.  We requested a five judge Bench be convened in the New South Wales Court of Criminal Appeal for this matter to clarify because there were two lines and we thought we had clarified it then.  But taking the question of severance, there are aspects of severance that should have been argued at a lower court, such as could certain charges be dealt with together?  Even where tendency evidence may be admissible, it might be admissible only between matters in this case, for example, where a car is sighted linked to this man and a telephone call is made – they all be dealt with together.  There are other types of offences, where there is just a description given of the man. 

There was a case that came before this Court, if I recall, about 1989 of Taylor, in which I appeared at the lower court against Mr Game, involving a schoolteacher in a kindergarten where there were a number of different types of sexual activity alleged to have been made and Judge Badgery‑Parker, as he was then, directed that there be three separate trials even though there were, say, twelve counts and there were different types of activity that were run together.  As I understood it, special leave was refused by this Court on that matter, but the Court of Criminal Appeal dismissed the appeal. 

So there are aspects of severance that do not involve 11 separate trials, but none of this has been argued at the Court of Criminal Appeal.  I submit that in the face of the way the question was put in the ground of appeal, it was not really the Crown’s job to start raising that whole question because it just was not raised in the ground of appeal directly. 

KIRBY J:   The problem is that we stand on the brink now, it seems to me, on the point that has been raised this morning and on the submission you have just made, of considering whether special leave should be rescinded and that leaves the decision of the Court of Criminal Appeal standing where there is an awful lot of discussion about Hoch and Pfennig.  With all respect, at least as a preliminary view, it is not the correct way to construe a statute whose purpose was to have a new dispensation so that people do not have to carry around large tomes of evidence law, but they have the statute.

GUMMOW J:   You won in the Court of Criminal Appeal.

MR SMITH:   We won there, yes.

GLEESON CJ:  They just applied the statute, did they not?

MR SMITH:   They just applied the statute, they said the statute ‑ ‑ ‑

GLEESON CJ:   Like the trial judge.

MR SMITH:   Yes, and we would submit that that was the correct interpretation.  That is what we are putting now.

KIRBY J:   They did so with a great deal of reference to whether they preferred Justice McHugh in Pfennig and it is not really to the point, with all respect, under the statute.  Water has passed under the bridge.

MR SMITH:   Well, except that where you are talking about propensity evidence or tendency evidence, I do not know that you can totally ignore how those expressions have been used in the past and the questions of prejudice that do arise.

GLEESON CJ:   The ideas that were considered in Pfennig, Boardman and Makin are still around and relevant to the application of the statute.

MR SMITH:   They are and we have not shrunk from that proposition that we have submitted a particular aspect of the Pfennig test usurps the function of the jury, in effect, and that is something that the Canadian Supreme Court has agreed with and, we would submit, the British cases support our proposition too on that aspect.  We want to meet that aspect, but it is just that if we get down into matters that have not been previously litigated, it is very difficult for us, but nevertheless, there is a man in gaol who has been convicted.  His convictions have been confirmed.  We concede that and that there is a justice question there as to - but if I could just seek some instructions from my - but I really have not anything further to say.

HAYNE J:   Well, before you sit down, Mr Smith, paragraphs 94 and 97 of the Court of Appeal judgment, those are the reasons of the Chief Justice.

GUMMOW J:   Page 959.

HAYNE J:   Thank you.  I had read as establishing as the decision of the court that “substantially outweigh” is not to be construed by reference to Pfennig, see paragraph 94, and that the statute is to be read consonant with what was said in Papakosmas in its own terms, see paragraph 97.

MR SMITH:   Yes.

HAYNE J:   Now, two questions (1) do you contend the Court of Appeal said anything different, and (2) would you, on this appeal, seek to contend for any different proposition from those two that I have identified?

MR SMITH:   We contend for what his Honour the Chief Justice has said at paragraph 94 and 97.

KIRBY J:   You say that you apply the statute by applying the Pfennig test by way of explication?

MR SMITH:   No, I do not think that is what ‑ ‑ ‑

HAYNE J:   It is the opposite of what the Chief Justice ‑ ‑ ‑

MR SMITH:   It is the opposite.  You apply the wording of the statute in accordance with Papakosmas.

GLEESON CJ:   The wording of the statute is brief and can only be understood and applied in the light of a whole lot of issues that have been considered over many years and many cases, but what the Court of Criminal Appeal has held in this case is that in applying the statute you do not apply the “no rational explanation” test that was favoured by the majority in Pfennig and that is the position for which you have come here to contend. 

MR SMITH:   That is our position.  The question of transcending or matters of that sort, the probative prejudicial aspect, the wording of the statute has similar wording to those common law expressions, but the “no rational explanation” test is a specific provision which appears to have started in Sutton, moved through Hoch, Thompson, and ultimately come to rest in Pfennig and stayed there ever since.  That is the primary aspect of the Pfennig decision that we certainly argue against and we submit that is what the Court of Criminal Appeal held against.

GLEESON CJ:   The Court of Criminal Appeal held that if that is part of the common law, as the majority in Pfennig said, then it is not part of the statute.

MR SMITH:   That is right, except the Chief Justice also said, there may be cases ‑ ‑ ‑

GUMMOW J:   That is paragraph 96, which is a bit of a back door. 

MR SMITH:   Yes:

My conclusion in relation to the construction of s101(2) should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made.

It may be that if you had similar circumstances to Pfennig and that was all the evidence you had, then that might be what he is talking about.  It is not clear to me what his Honour was really referring to there, but this certainly is not a case like that, in our submission.

GLEESON CJ:   He might have been responding to what Justices Hidden and Buddin were troubled about.

MR SMITH:   Yes, and, again, even though they agree with the Chief Justice and his reasons, they seem to be really jumping back to the Pfennig ‑ ‑ ‑

GLEESON CJ:   This is the ultimate problem.  This is a subject on which a lot of people have said a lot of things over a long period of time, and, not surprisingly, they have said some different things, but the question in the particular case is whether the difference is determinative of the outcome.

MR SMITH:   Yes.  It will be our submission in this case that it is not, but for the clarity of interpretation of the Evidence Act that the statutory interpretation adopted by the majority of the Court of Criminal Appeal is the appropriate one.  We are happy for – I mean, I have put my submissions as to whether I agree with the proposed amendments.  We would also be anxious for this matter to be dealt with in this hearing, if possible, this whole question, so that – perhaps I am going back a bit from my submissions – I submit that the Court should hear the whole appeal and determine whether to allow the amendments. 

GLEESON CJ:   We do not give guideline judgments.

MR SMITH:   I know you do not, your Honour, no.

CALLINAN J:   And to the references that Justice Hayne gave you should be added, I think, paragraph 55 at 713 and paragraph 63 at page 714.

MR SMITH:   That is book 4, is it?

CALLINAN J:   Pages 713 and 714, paragraphs 55 and 63.

MR SMITH:   Yes, I am just ‑ ‑ ‑

HEYDON J:   I think his Honour is referring to the report of the case rather than the appeal book.  I think he wants you to look at paragraph 55 on page 951.

CALLINAN J:   Yes, I am sorry.

MR SMITH:   I see, thank you.

CALLINAN J:   Yes, paragraphs 55 and 63.

MR SMITH:   Yes, your Honour.

CALLINAN J:   His Honour could not have made it clearer, could he?

MR SMITH:   That he did not ‑ ‑ ‑

CALLINAN J:   The Chief Justice?

MR SMITH:   Well, he did read ‑ ‑ ‑

CALLINAN J:   That the statute had been applied and correctly so, without any attempted explication of Pfennig’s Case.

MR SMITH:   Yes.  There was just a note that I passed to Mr Odgers that his Honour Justice Kirby mentioned.

KIRBY J:   You seem very suspicious of it.

MR SMITH:   It was referring to paragraphs 63 and 64 in response to that earlier question of whether the Court of Criminal Appeal ever referred to the judge’s decision, the trial judge’s ruling, and it just seemed to me that 63 and 64 really was at its highest.  They are saying there, well, basically:

I am not prepared in these circumstances, to conclude that his Honour did apply the Pfennig test, in some unstated manner, by way of explication of the statutory test.

It is, accordingly, necessary to decide whether the Pfennig test must still be applied.

GLEESON CJ:   If he had have applied what was called the Pfennig test, it could only have been favourable, or more favourable, to the accused, could it not?

MR SMITH:   Yes.  Well, it would.  It is a strict test.

GLEESON CJ:   Yes.

MR SMITH:   But, in our submission, we still would have satisfied.

GLEESON CJ:   It might more accurately be called the “no rational explanation” test.

MR SMITH:   That is right.

GLEESON CJ:   That is the sort of thing that counsel for accused people like to talk about because it sounds strong advocacy.  But, as I said earlier, the decision in Pfennig was unanimous.

MR SMITH:   Yes.

GLEESON CJ:   All right.  Is there anything further you want to say, Mr Odgers?

MR ODGERS:   Yes, just briefly, your Honours.  There is a question of general importance which is raised by this appeal which is whether the “no rational view” test should be applied by judges in criminal courts in New South Wales and Tasmania and the ACT.

GLEESON CJ:   Now, that question has been solved if we leave standing the judgment of the Court of Criminal Appeal, has it not?

MR ODGERS:   It has been answered by that court.

KIRBY J:   But without our hearing your submission.

MR ODGERS:   Quite.  It is a question that arises not just in terms of severance issues, but also admissibility, in cases where it is not multiple counts but you are seeking to lead evidence of other offences which are not the subject of particular counts.  It also arises in terms of proper directions to juries.  So we do respectfully submit that because of the general importance of that question, this Court should be prepared to hear the appeal.  I would also submit that it is not a case of a guideline – I am sorry, your Honour the Chief Justice used the language of not giving advisory opinions.  The question is whether or not the trial judge erred in not applying the “no rational view” test.

GLEESON CJ:   No, the question is whether the trial judge erred in not severing the counts. 

MR ODGERS:   I understand that, but I have sought to contend – I do not know whether I have been successful – that the question I have put to your Honour is an important preliminary question before one would then go on to ask the question or whether or not he erred in failing to sever, which in turn raises questions of whether or not there was a miscarriage of justice in this case because of what we submit was the error he made in failing to apply the “no rational view” test.  So we contend that a question arises, it is available to be determined on the materials in the appeal books, whether or not he erred on that question, and it indirectly raises issues about whether there was a miscarriage of justice in this case. 

If it is necessary that the matter be remitted to the Court of Criminal Appeal to determine severance questions, then we would respectfully submit that that is an option that should be contemplated, given the importance of resolving or this Court addressing the question for uniform Evidence Act jurisdictions of whether or not it is correct that the “no rational view” test not be applied, because it has enormous implications in criminal trials in those jurisdictions, in terms of how lawyers approach these issues, how judges deal with them, the amount of time that is going to be spent, the certainty, the predictability of outcomes, and obviously enormous consequences in terms of severance, as I think is clear now.  I do not think I can add anything further. 

GLEESON CJ:   Very well.  We will adjourn for a short time to consider the course we will take.

AT 11.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.57 AM:

GLEESON CJ:   Mr Odgers, on your application for leave to amend your notice of appeal, we would like to give you the opportunity to say anything you want to say orally, in addition to your written submissions or by way of development of your written submissions, on the question of whether or not the Court of Criminal Appeal was right in its approach to the construction of the statute. 

MR ODGERS:   Certainly, your Honour.

GLEESON CJ:   Now is your opportunity.

MR ODGERS:   Your Honour, just so I understand this, that in its essence was what I had thought I had come here to do today and I was going to spend several hours making those submissions.  Is that ‑ ‑ ‑

GLEESON CJ:   Now is your opportunity.

MR ODGERS:   Thank you, your Honour. 

KIRBY J:   Just before you start, can I get it clear in my mind that you concede that unless you get the amendment to challenge the severance ruling of the primary judge, you cannot succeed in the appeal?

MR ODGERS:   We have sought leave to amend ‑ ‑ ‑

KIRBY J:   I realise that, but unless you get ‑ ‑ ‑

MR ODGERS:   I am sorry, your Honour, in respect of the directions that the trial judge gave?

KIRBY J:   No, the decision of the trial judge to sever the first two counts ‑ ‑ ‑

MR ODGERS:   I understand that.

KIRBY J:    ‑ ‑ ‑ and then to gather the others together.

MR ODGERS:   Yes.

KIRBY J:   Unless you can get leave to amend your grounds of appeal, as you have sought, to challenge that ruling, you cannot succeed in the appeal before this Court.

MR ODGERS:   I am just reluctant to make that concession, your Honour.

GUMMOW J:   I am sure you are.

MR ODGERS:   Your Honours appreciate that.  I certainly have great difficulties, I can go that far ‑ ‑ ‑

KIRBY J:   Well, would you just, whilst you are addressing us on the other point, let your subconscious mind tarry upon that issue and come back to it before you finish, in order to clarify whether you could succeed without the amendment.

MR ODGERS:   Yes, certainly, your Honour.

KIRBY J:   And if so, to indicate how.

MR ODGERS:   Yes, your Honour.  Now, the question I have been asked to focus upon is whether or not ‑ ‑ ‑

GUMMOW J:   It is a simple one, really, it is the construction of the section.

MR ODGERS:   Yes. 

GUMMOW J:   And we will not be assisted necessarily by any exhaustive recounting of what various people have said about it.

MR ODGERS:   No, I appreciate that.  Can your Honours just bear with me for a minute while I restructure what I was going to say?

GUMMOW J:   Yes.

HAYNE J:   It is the fun of appearing here, Mr Odgers.

MR ODGERS:   I appreciate that, your Honour, and I will remember it for a long time.  Your Honours – and you will tell me immediately if I am proceeding in a way that does not assist your Honours – what I propose to do is to take your Honours through the judgment of Chief Justice Spigelman where he ‑ ‑ ‑

GUMMOW J:   We have read that.

MR ODGERS:   Yes.

GUMMOW J:   We are not here to have some book readings.

MR ODGERS:   No.

HAYNE J:   Why is it wrong, Mr Odgers?

MR ODGERS:   Yes, all right.  Your Honour, I will do it without my notes.

McHUGH J:   Yes, well, that is probably a better way.

KIRBY J:   You posed an attempt to insert into the statute the language of the strict test in Pfennig.  The Chief Justice held that that was not consistent with the language of the statute.  What is wrong in that holding?

MR ODGERS:   Yes.  Our submission is that in applying the balancing test in section 101 a court should begin, firstly, with the proposition that that test was intended to replicate the common law test for the admissibility of similar fact and propensity evidence.

HAYNE J:   Why?

MR ODGERS:   Because that is what the explanatory memorandum to the evidence Bill said.

KIRBY J:   Only yesterday in a special leave application before Justice Callinan and myself in Sydney you were making the point that the Evidence Act brought in a new regime that allowed ‑ to the astonishment of Justice Callinan from the Queensland background – evidence that just would not ordinarily be admitted.  This is a new regime.

MR ODGERS:   Yes, all right.  Perhaps I should try to distinguish this case from Papakosmas because that is the first question.  In Papakosmas this Court was considering provisions – the hearsay rule – and the hearsay provisions created new exceptions to the hearsay rule, and the question the Court was considering in Papakosmas was whether, in the exercise of the discretions, particularly in section 136 of the Act, the discretion should be utilised in a way which effectively brought back the common law position.

KIRBY J:   I am sorry to make your task more difficult, but should we not start with first principles.  We have a statute.  It is a reforming statute.  It was designed to introduce many new concepts.  This Court has said many many times recently, you start with the statute.  Papakosmas said that in this context.

MR ODGERS:   Your Honour, I began with the explanatory memorandum which provided, as the Interpretation Act says, relevant information as to the intention of the provision.  I was distracted a little by the question of the hearsay rule and all of that.

KIRBY J:   There is a point concerning a difference between the text of the statute and the Law Reform Commission report.  Does that throw any light on the history of the development?

MR ODGERS:   The position is that the Law Reform Commission reports do not provide any substantial assistance in the proper interpretation of section 101 because that provision is significantly different from what was proposed by the Australian Law Reform Commission.  I have annexed to the reply, your Honours, an appendix from the final report of the Law Reform Commission and your Honours will see that the provision that was drafted by the Law Reform Commission, which was clause 89, is in very different terms to section 101.

McHUGH J:   Is not your argument stated in four propositions?  You start with (1) that the explanatory materials to the Evidence Bill 1993 asserted that section 101 reflected the rule applied at common law in relation to what was commonly referred to as “similar fact” evidence; (2) the High Court made it clear on a number of occasions that the common law test of admissibility in this area can be expressed in different ways; (3) in Hoch’s Case, Justices Brennan and Dawson spoke about probative force clearly transcending its merely prejudicial effect; (4) there is no difference between probative value substantially outweighing it and probative force clearly transcending; (5) you are not saying that Pfennig replaces the statutory test, you simply say that it gives you guidance as to the content of the term “substantive”.  Is that your argument?

KIRBY J:   I think you added (6) that where the common law defends basic rights, you need clear legislation that will derogate from what has been a settled principle of common law, and the statute does not do that or should not be construed to do that, but to give effect to the common law.

MR ODGERS:   It may be just an amendment of what your Honour Justice McHugh – the last proposition you put to me, that to support the proposition that the provision in the Act should be applied with the benefit of the guidance that the High Court  ‑ ‑ ‑

GUMMOW J:   The guidance is rather confused.  That is the problem.

MR ODGERS:   I understand that, your Honour, and I will have to go back to develop ‑ ‑ ‑

GUMMOW J:   But that is the problem, is it not?  What Justice McHugh put to you just now fairly had several expressions.

MR ODGERS:   Well, your Honour, that is true.  At common law, there is some uncertainty as to the scope ‑ ‑ ‑

GUMMOW J:   Well, why not say the statute cleared it up?

MR ODGERS:   No, your Honour, because the argument we advance ‑ ‑ ‑

GUMMOW J:   Why not prefer that to the construction of the statute that is confused with this Boy Scout notion of guidance?

MR ODGERS:   The answer, your Honour, is that as the majority of the Court said in Pfennig, the common law principle is a balancing test.  That applies to similar fact and propensity evidence, and about that there is really no disagreement.  You will not find any  ‑ ‑ ‑

GUMMOW J:   Well, this intrusion of the word “balancing” into various legal propositions in the last 50 years has been very deleterious.

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take.

AT 2.56 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.03 PM:

GLEESON CJ:   We do not need to hear you further, Mr Smith.

MR SMITH:   If the Court please.

GLEESON CJ:   The appellant appealed to the Court of Criminal Appeal of New South Wales and later appealed to this Court on what, in effect, was a single ground, that the evidence of the commission of the several offences of breaking, entering and stealing with which the appellant was charged was not admissible at his trial.

That particular question must be determined against the appellant.  Evidence of the commission of the offences with which he was charged was, of course, admissible at the trial of the charges in the indictment on which he was arraigned.

The complaints the appellant now seeks to make concern the decision of the trial judge not to sever the counts in the indictment beyond the severance of two charges not now in issue and the directions given to the jury at the trial.  Both of those complaints raise issues that have not been raised before or considered in the courts below.

Counsel for the appellant, acknowledging the difficulty of sustaining the present grounds of appeal, sought leave to amend his notice of appeal by adding the following three grounds:

1.        The Court of Criminal Appeal erred in failing to hold that a miscarriage of justice resulted from the trial judge holding that certain evidence could be admitted as tendency and coincidence evidence;

2.        A miscarriage of justice resulted from the trial judge erring in the exercise of his discretion in deciding an application to sever the counts in the indictment;

3.        The trial judge erred in directing the jury that certain evidence could be used as tendency evidence and coincidence evidence.

If leave had been granted, those grounds would have been added as grounds 3, 4 and 5 to the notice of appeal, as amended.

In the course of making his application to amend, counsel was given the opportunity of advancing any arguments he wished to make concerning the decision of the Court of Criminal Appeal on the construction of the Evidence Act 1995 (NSW).

The application for leave to amend the notice of appeal is refused.  The proposed new grounds seek to raise issues that were never dealt with, either at trial or in the Court of Criminal Appeal.  Special leave to appeal from the decision of the Court of Criminal Appeal is rescinded.  Upon further examination, it appears that there were insufficient prospects of success of an appeal to warrant a grant of special leave.  We would add that we agree with the decision of Chief Justice Spigelman on the construction of the Evidence Act 1995 (NSW).

We will adjourn until 10.15 tomorrow.

AT 3.06 PM THE MATTER WAS CONCLUDED