IMM v The Queen

[2016] HCATrans 8

[2016] HCATrans 008

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D12 of 2015

B e t w e e n -

IMM

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 FEBRUARY 2016, AT 10.19 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, MS K.J. EDWARDS.  (instructed by Northern Territory Legal Aid Commission)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR M.W. NATHAN, SC, for the respondent.  (instructed by Director of Public Prosecutions (NT))

FRENCH CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, an outline has been provided ‑ if your Honours might have an opportunity to look at that.

FRENCH CJ:   Just take a seat for a moment, Mr Odgers.  We will have a look at that.  Yes, thank you, Mr Odgers.

MR ODGERS:   Your Honours will see from the outline that I propose to do a brief outline of the operation of the Evidence (National Uniform Legislation) Act (NT) which is very largely uniform with a number of other jurisdictions. I am sure a lot of what I say, hopefully, will be – I will keep it brief, and it may be your Honours are fully familiar with it, but it may be useful just to do that brief outline.

As your Honours no doubt appreciate, Chapter 3 deals with the admissibility of evidence.  Sections 97 and 137 both fall within Chapter 3.  The first key provision in Chapter 3 is section 56, which provides that:

Evidence that is not relevant . . . is not admissible –

and evidence that is relevant is to be admitted except as otherwise provided in the Act. Section 55 defines “relevant evidence”. Your Honours have seen the definition, and it is contained in the outline under point 2. As your Honours appreciate, it is a very broad test which essentially requires a court to conclude that evidence is relevant if it is capable of affecting the probabilities even minimally, and in contrast with probative value which, as your Honours appreciate, requires a judgment of what extent it can affect the assessment of the probabilities.

FRENCH CJ:   The words “if it were accepted” play a part in the argument?

MR ODGERS:   Of course.  Now, there are a number of exclusionary rules within Chapter 3.  An example we have given initially is 59, which is the hearsay rule.  That provides that an out‑of‑court statement relied on to prove the truth of what was asserted is to be excluded, and then there are a whole series of exceptions to that.

Some of the exceptions – and we have given a couple of examples – 66A, of course, is one and it may be that I will come back to that later in the argument but that relates to criminal proceedings where a person who made the out‑of‑court statement is to be a witness in the proceeding and the test for overriding the hearsay rule in that context is whether or not when the statement was made, the event was fresh in the memory of that person.

Section 65 creates other exceptions in criminal proceedings for firsthand hearsay and, as your Honours appreciate, 65(2) contains a number of those exceptions.  And it is relevant, we say, that factors that are to be taken into account by the Court bear on questions of both reliability and, to some extent, truthfulness in the application of those exceptions.

Another rule – exclusionary rule – in the Act is the tendency rule contained in 97 and, your Honours, if I could just go to that briefly.  What that provision says – your Honours can read subsection (1) but:

Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency . . . to act in a particular way –

So, it is a rule focusing on a particular process of reasoning and there is no dispute in this case that the evidence relating from the complainant regarding what she says her father had done in the massage incident in running his hand up her leg fell within the scope of 97.  The evidence is not admissible unless – in this case the prosecution – paragraph (b) satisfies the Court that:

the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

There is essentially an identical test for the admissibility of coincidence evidence in 98.  I will not take you to that, and I should say, 97 and 98 apply generally to any proceeding, both civil and criminal and applies to defence evidence in a criminal proceeding and certainly applies to the evidence in this proceeding.

Then of course 101 imposes further constraints on both tendency and coincidence evidence where relied on where adduced by the prosecution.  It was not argued in the Court of Criminal Appeal that the evidence of the tendency was inadmissible by reason of 101, so I will not be taking you to that.  The focus will be on the operation of 97. 

Other provisions that should be noted are 95 which has the effect that even if evidence that discloses tendency is admitted for some other purpose, for example to go to let us say credibility, that will not prevent the operation of what I will call the exclusionary rule but it is not operating to exclude it.  What it is operating to do, in this context, is to prevent tendency reasoning.

I mentioned 101, so 135 is, as your Honours appreciate, a whole series of exclusionary rules with exceptions and then at the end of Chapter 3, in Part 3.11 there are what are called discretionary and mandatory exclusions.  Section 135 is a provision which applies in all proceedings requiring the court to balance probative value and other – and certain dangers.  That was not relied on in this case. 

Section 136 is a discretion to limit the use that may be made of evidence so that where evidence is otherwise admissible for a particular use is relevant for that use and is not excluded by an exclusionary rule from being used in that way then 136 permits the court to effectively prohibit that use.

Finally, in this context, 137 which is only in criminal proceeding and applies only to evidence adduced by the prosecution and it states that the court must - it may be that that is going to be something that is going to be referred to later in the argument in contrast with the word “may” in 135 and 136 but:

must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

That is a brief summary of the structure of Chapter 3.  Of course, there are other provisions that may be relevant, warning provisions in 165, but I will not take you to those.  My friend may take you to them. 

In the outline we have referred to various terms used in the Act. The ones that we have listed there are defined in the dictionary to the Act. I am sorry - “probative value” is defined in the dictionary and “credibility of a witness” is defined in the dictionary; “relevant evidence” of course is effectively defined in section 55(1).

I will not say any more about those at this stage, other than perhaps to note that “credibility of a witness” is used in a sense which is very broad and it is understood that it includes questions going to the reliability of a witness, as distinct from simply questions going to truthfulness.  That may or may not be relevant to the ultimate issues before this Court.

In terms of terminology that I use, I am going to try to be consistent.  I think it is important to try to be consistent about terminology because different people use the same term in different ways, so I am going to try to use these terms in the ways as defined.  So “weight” is defined there by me to mean:

the extent to which the evidence affects the assessment by the tribunal of fact of the probability of the existence of a fact in issue (taking into account all material matters -

and it would be a material matter that there is some aspect of a circumstance going to the reliability of the witness, let us say, who was testifying and giving the evidence – that would be a material matter which would bear on the assessment of the weight to be given to that evidence by the tribunal of fact.

FRENCH CJ:   That is when all the evidence is in?

MR ODGERS:   Yes, at the end of the process when the tribunal of fact is determining the case and considering the evidence that the tribunal will necessarily assess the weight to be given to items of evidence and that will be the task that it performs.  You will notice what I have done is formulate it in a way which correlates to the definition of “probative value” that also assists in differentiating between the two concepts, because “weight” is not expressed in terms of what could happen or what could rationally happen.  It is expressed in terms of the assessment by the tribunal of fact as to what the effect is in the view of the tribunal of fact of the impact on probabilities.  “Reliability” is defined by me as:

the extent to which reliance may be placed on the evidence when determining its weight (taking into account all material matters –

and a material matter may well be circumstances going to the truthfulness or otherwise of the person giving the evidence.

After we had done the outline I thought of another term which might come up, which it probably would be helpful for me to say something about, and that is the term “taking evidence at its highest”.  That is a term that was used a lot in the common law and it has been used to some extent – it is a phrase, I am sorry, not term – that comes up in this context as well. 

When I use it I hope to be consistently using it in the sense of simply a reflection of the proposition that the definition of “probative value”, which is extracted at the top of the outline, requires the court to assess the rational capacity of the evidence to affect the assessment of the probability of the existence of a fact in issue. 

As a practical matter, when a court is doing that in circumstances under like section 97 or 137 that will require the court to assess that probative value at the highest level of that capacity because it is being asked to consider whether the probative value is significant in terms of 97 or whether it is outweighed by certain dangers under 137 and therefore, as a practical matter, if there is a range of capacity from very low capacity to high capacity, the court will assess it at the highest level of rational capacity.

FRENCH CJ:   I am not sure what that means.  Does that mean anything more than assuming the evidence to be true?

MR ODGERS:   No, it does not.  What it does not mean is that.  It does not assume it to be true.  It means that ‑ ‑ ‑

FRENCH CJ:   Assuming for the sake of argument it is true – not accepting that it is – you assume it is true and then you look at its rational effects.

MR ODGERS:   I think that is one of the issues before the Court.

FRENCH CJ:   I am just looking at the way you are using the terminology “taking evidence at its highest”.

MR ODGERS:   Yes.  You are asked to assess capacity and the capacity is premised on an assessment by a rational fact finder.  The question that is being asked, we say, in terms of probative value, is what is the highest level of impact – using the language of rationally affect the assessment of the probability of the existence of a fact in issue ‑ what is the highest level of impact in that sense that the evidence could rationally have?  That is what the words, we say, of the definition of “probative value” require.  When I use the term “taking evidence at its highest” it is simply a reflection of that proposition – the application of the definition; the words in the definition as they appear in the definition, without anything added to those words.  I am sure this will become clearer as the argument proceeds.

If I could just take your Honours briefly through the actual rulings.  No doubt your Honours have looked at this, but I will just take your Honours briefly to the material.  At appeal book 2 at 696, this was the ruling in respect of the uncharged acts evidence.  Your Honours will appreciate that there was a great deal of generalised uncharged act evidence and the judge ruled that it was not admissible for tendency reasoning, that it did not meet the 97 test, and the jury were directed that they could only use it as “context”.

The other item of evidence was a specific piece of evidence where the complainant alleged that I think roughly six months after the last charged act there was an incident during a massage where she asserted that the appellant had touched her leg or run his hand up her leg.  The judge dealt with the generalised statements at 700 to 702 and then she came at 704 to the ruling in respect of the specific evidence relating to the running his hand up the complainant’s leg.  This is paragraph 10 at the top of 704:

In my view the evidence . . . does possess the quality “significant probative value” required by s 97 ‑

Then the key words, which we say disclose error ‑

This is on the assumption that I am required to make that the jury accept the evidence.

Her Honour then distinguished this from the generalised statements and she says:

If accepted, is capable of demonstrating an inappropriate sexual interest –

by the accused in the complainant.  We do not really take issue with that proposition, if accepted but - sorry, we take issue with beginning with that premise and so that is really the ruling that her Honour made in respect of the tendency evidence.

In respect of the complaint evidence, and your Honours appreciate there were a number of complaints, I think there were complaints to five different people - I will not take your Honours to the evidence at this stage certainly, and may not at all, but there are complaints to the grandmother and the aunty on a particular day.  Then the complaints to the mother the following day and also complaint made to a friend, SS, and there was an issue in the trial about when that took place.

The ruling on the complaint evidence is - go to page 679 of the appeal book - and this evidence was challenged on a number of bases.  It was challenged on the basis it was not relevant.  It was challenged on the basis it was hearsay.  It was sought to be excluded under 137.  For the purposes of this appeal, the focus is on 137 but there are aspects of her Honour’s analysis which are relevant in this context.

In particular, when she was assessing the question of relevance, she acknowledged that there were various factors present which raised questions about the reliability of the complaint evidence and your Honours appreciate that we have drawn attention to some of those factors - the timing of the complaints, the circumstances in relation to which she complained to her grandmother and aunty and the leading nature of some of the questioning.  These are all aspects that her Honour referred to but concluded that the evidence was relevant and we are not taking issue with that in these proceedings and we did not in the Court of Criminal Appeal, I should add.

But then it came to the application of 137.  She dealt with the hearsay exception at page 688 and over to 689.  I am not sure that it is particularly relevant but it seems that her Honour differentiated between the complaint made to the mother and the complaint made to SS on the one hand, which her Honour applied section 66 to, in the sense that it overrode the hearsay rule but she did not apply it in respect of the complaints made to the aunt and the grandmother and she allowed that in only as context for the complaint made to the mother. 

I do not think that is going to be relevantly significant in the determination of this appeal but I just noted that that was the effect of her ruling at 689 and also 692 but turning to the key aspect of the appeal, her ruling in respect of discretionary exclusion at page 689 ‑ ‑ ‑

FRENCH CJ:   You would call that “mandatory exclusion”?

MR ODGERS:   I was just going to say, your Honour – I am referring to her Honour’s language but, of course, the Act talks in terms of mandatory.  I know this is going to come up later so I might as well say it now.  We say that there is really no difference between you may exclude it if the probative value is outweighed by unfair prejudice, because it is essentially inconceivable to imagine any circumstances in which you would not exclude it.  The use of the word “must” is really a statutory recognition of that reality, that if probative value is outweighed by dangers of unfair prejudice, you really have no choice, you have to exclude it.  The change from “may” to “must”, we say, does not alter anything but, nonetheless, it is mandatory in that sense.

Putting that to one side, her Honour dealt with 137 at paragraph [40].  It was submitted that the evidence should be excluded under that.  At the top of 690, her Honour noted that there are matters going to weight which the jury will need to consider.  Those are the matters I referred to earlier; the matters that she discussed to some extent under the assessment of relevance.  Then, paragraph [28], she refers to “real risk”; the aspect of danger of unfair prejudice.  We do not take issue with her formulation of those dangers.  Then, paragraph [29] – and this is where we do take issue:

Further, the enactment of s 137, as with the common law Christie discretion, does not involve considerations of the reliability of the evidence when considering its “probative value”.  The evidence is to be “taken at its highest” –

That is using that phrase in a somewhat different way to the way we do –

Even prior to the UEA, the term “probative value” included an assumption that the evidence would be accepted on the basis that the “evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted” –

That is a quotation from Justice Gaudron in Adam, and I will return to that in due course.  Then her Honour said –

Although contrary views have been expressed as noted in Shamouil, the preponderance of authority favours a restrictive approach to the assessment of “probative value” –

Her Honour plainly applied that restrictive approach, which we understand to mean that she did not factor in considerations bearing on the reliability of the evidence when assessing probative value.  Her Honour proceeded on the assumption that the evidence would be accepted in performing that task.  We, again, take issue with that approach.  We say that it is erroneous, and I will come to that in due course.

Now, the appeal in the Court of Criminal Appeal – it is true to say the judgment of the Court of Criminal Appeal does not clearly and unambiguously focus on these precise issues that we have articulated but, nonetheless, it is undoubtedly the case that it was argued and the Court of Criminal Appeal both in respect of the tendency evidence and the complaint evidence that it is erroneous to assess probative value on the assumption that the evidence will be accepted or that one disregards questions going to reliability.  There were complications in that and various other arguments were advanced and that may explain why it is that the judgment of the Court of Criminal Appeal does not always clearly grasp the nettle, so to speak, in terms of the issues we raise in this Court.

But we say that it is clear that the Court of Criminal Appeal took a view relying on Shamouil that, in essence, it is appropriate to disregard considerations going to reliability and that it is, in essence, as Justice Gaudron said in Adam, that the assessment of probative value should proceed on the assumption that the evidence will be accepted.

In any event, we have extracted various parts of the judgment – the leading judgment of the Court of Criminal Appeal in the outline which deals both with the tendency evidence and the complaint evidence.  The appeal was dismissed.  We have sought to isolate the key issue in the way that we have that was before the trial judge and before the court there to allow the question of principle to be resolved.  If I could, having had that introduction, turn to the key question ‑ ‑ ‑

FRENCH CJ:   By the way, when you use this term “reliability”, just looking back at item 3 in your outline, you say:

extent to which reliance may be placed . . . (taking into account all material matters including the assessed truthfulness –

Now, does that mean some notion of the person is doing their best to tell the truth?  It is not a notion of the accuracy of what they are saying?

MR ODGERS:   When a tribunal of fact is assessing weight and, as part of that exercise, assessing the reliability of a witness, relevant considerations would include circumstances – take identification evidence as an example.  If there were circumstances relating to the identification, it was a dark night, the observations were made from a long distance, never seen the person before, they would be factors which would bear on the reliability of a subsequent identification of an accused as the offender.

So that would be one aspect of reliability, but there would be another aspect of reliability, which must be the case with essentially every witness although it will very rarely be an issue with the vast majority of witnesses, that there is a question about truthfulness.  If a view is taken that a witness is most likely untruthful then that would mean that the reliability of that evidence is significantly reduced and, therefore, the weight to be given to that evidence will be very significantly reduced.  Is that answering your Honour the Chief Justice?

FRENCH CJ:   Yes, I just wanted to understand how you were using the concept.

MR ODGERS:   I hope I am using it consistently.  So, the term “probative value”, of course, as we appreciate, is defined in the dictionary of the Act.  It is the key term both in terms of 97 the requirement of “significant probative value” for tendency evidence and in section 137 where the Court is required to engage in what I will call a “balancing” of two concepts, one is probative value on the one hand and the other is danger of unfair prejudice on the other. 

We say that one should, in applying both 97 and 137, import the definition in the dictionary and, of course, we rely on section 3 of the Act which states, in common with other uniform evidence law – other uniform legislation – that subsection (1):

Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary.

I am not sure that anybody suggests to the contrary but that is the operation of that provision.  You import the definition into both 97 and 137.  We say that the Court should, in construing the definition as it appears in those provisions, that the natural meaning should be given to the words of the definition and we have advanced an argument in the written submissions at paragraphs 6.14 to 6.16 where we have sought to elicit what we say is the natural – giving the words of the definition of their natural meaning. 

In particular, we emphasise at 6.15 of our written submissions that in the context of, for example, 97, the court is – the judge applying it is asked to determine the capacity of the evidence, by itself or in the light of other prosecution evidence, to affect the proof of any of the charged offences because they will be the facts in issue in the proceedings and in requiring the extent of the capacity to be considered, the definition is premised on the assumption that evidence can vary in its capacity to affect the probability of the existence of a fact in issue and demands a determination of the extent of that capacity.

We say that the court is required by the definition to consider all matters that would rationally bear on such an assessment by the tribunal of fact.  The court is required to consider how a rational tribunal of fact could assess the weight to be given to an item of evidence and we say it would be directly contrary to the natural meaning of the words to constrain the determination of that extent by requiring an assumption that the tribunal of fact will assess the evidence in a particular way, that is, requiring an assumption that the tribunal of fact will accept it, particularly in cases where there are reasons to question the reliability of the evidence.

So, we say the natural meaning of those words in the definition necessarily carries with it a requirement that all factors that rationally bear on the assessment of weight are to be taken into account in the assessment of probative value and that it would be wrong to exclude from consideration one or more of those considerations – one or more of those factors which do rationally bear or would rationally bear on the assessment of weight.

BELL J:   Can I just take up one aspect of the argument in the context of the evidence about the massage incident?  As I understand your argument, in assessing the probative value of that evidence the trial judge would look at and make some estimate of the assessment that might be made of credibility if, for example, the complainant had not given an account of the massage incident in her interview with the police where she made her allegations and that particular allegation had emerged at a later time.  That might be something that would bear both on credibility and reliability.

So looking at those factors the court, in the exercise of the – the 97 exercise or the 137 exercise might assess the probative value as relatively low, whereas taking the other view, looking at the evidence tendered on behalf of the prosecution in terms of its capacity to support the prosecution case, one might put to one side those particular considerations about credibility and reliability.

Nonetheless, taking, if you like, a midway course, Mr Odgers, one might say the probative value of that evidence is not high, not because the court is making some judgment about whether the jury are going to think the complainant is credible, having seen her evidence and knowing all of the evidence in the case, but simply because there is a limitation on the capacity of the evidence to rationally affect the assessment of whether the offences were committed because the source of evidence about the massage incident rises no higher than the source of evidence about the facts in issue.

The distinction is between an acknowledgment that the court in the exercise of assessing probative value is assessing the evidence in terms of it making some assessment of whether the probative value of the evidence is high or low but not embarking on consideration of criticisms of it that might commend themselves to a jury or might not.

MR ODGERS:   Well, I am very much in agreement with your Honour’s approach and indeed we had attempted, at paragraph 6.32 to 6.35, to rely on that very point that your Honour makes, that the reason we say the evidence from the complainant about tendency had low probative value was precisely because of the point your Honour made that the value could rise no higher than the source in the circumstances of a case where her credibility was the very issue that the jury had to determine, and it is on that basis that we say the evidence necessarily had low probative value or, more precisely, that a trial judge, applying the law properly, could conclude it had low probative value.

We do not rely on any argument that the judge, applying 97 correctly, would engage in assessments of reliability or credibility of the type your Honour has postulated.  We do not say – I need to be clear about this – that a judge would be precluded from doing that, but we would say that that kind of investigation is unlikely to lead to any conclusion requiring exclusion of the evidence. 

Perhaps the point that needs to be made is that we do not say that in assessing probative value a judge is required to look at considerations going to reliability or required to look at considerations going to credibility.  What we say is that a judge is not constrained artificially to assume that the evidence will be accepted because that then leads to an outcome which we say is erroneous. 

If you do not have that constraint and you ask the question, in respect of the evidence of the complainant relating to the tendency, does that evidence have the capacity to significantly affect the assessment of the probability that the accused committed the offences charged, which turned very much on an assessment of her credibility, the answer, we say, is a proper analysis would say no, it cannot, for the very reason your Honour articulated, and that is the argument we advance.

KIEFEL J: Before one gets to section 97(1), does not the evidence, like all other evidence, have to pass through the gateway of relevance in section 55?

MR ODGERS:   Of course.

KIEFEL J: Is not the presumption of acceptance dealt with by section 55? The question there:

The evidence that is relevant . . . is evidence that, if it were accepted, could rationally affect ‑ ‑ ‑

MR ODGERS:   Yes.

KIEFEL J: When one proceeds to section 97, you proceed upon the basis that it is evidence, if accepted, and the question then under section 97 is simply as to the extent of its probative value. But the question of acceptance is dealt with by section 55, is it not?

MR ODGERS:   With respect, your Honour, we take a different view on that.

KIEFEL J:   Why?

MR ODGERS:   It is very convenient your Honour has raised that now because this is dealt with under the statutory context point.  Our argument is directly to the contrary of that proposition your Honour has put to me.  We say that the legislation clearly differentiates between an assessment of relevance and an assessment of probative value.  When a court is determining whether or not evidence is relevant it is required to assume that the evidence will be accepted.  That is because a deliberate decision is made that relevance is to be a relatively easy threshold to jump over.  It makes relevance, in the vast majority of cases, a relatively easy test to satisfy.

KIEFEL J:   But that is simply to acknowledge the difference between the judicial role and the finder of fact where they are separated.

MR ODGERS:   Your Honour, I am reluctant to ascribe any particular purpose to the statutory formulation.

KIEFEL J: If we keep to the language of the statute, are you saying then that the test of relevance for the purpose of section 97 is other than section 55?

MR ODGERS:   We say that it is not a test of relevance; it is a test of significant probative value as defined and ‑ ‑ ‑

KIEFEL J: But, as you say, that is quite distinct from relevance and it has to have passed through section 55.

MR ODGERS:   Correct, and so we say that because of the way relevant evidence is defined, it will relatively easily pass through that requirement but then when it comes to 97 which is designed to impose a burden on the prosecution in respect of a certain category of evidence which is perceived to have inherent potential problems at a particular, a new hurdle id created and that is a new hurdle, which has two aspects to it.

It has a requirement of an assessment of probative value as defined and as the Chief Justice pointed out to me, we place quite a lot of weight on the fact that the words “if it were accepted” are not found in the definition of “probative value” in contrast with the definition of “relevant evidence”, and so it requires an assessment of probative value as defined, which does not include those words, and it requires that the probative value be assessed to be significant.

FRENCH CJ:   It may not include those words because it assumes their existence on the basis of the evidence, as Justice Kiefel has put to you, has passed through the gateway of relevance.

MR ODGERS:   I am trying to grapple with that proposition.  I can only repeat that what the statue does ‑ ‑ ‑

FRENCH CJ:   It picks up precisely the language, does it not, of the second limb of the definition of “relevance” in 55 and then adds the words “to the extent to which”?

MR ODGERS:   Adds those words and deletes the words “if it were accepted”.

FRENCH CJ:   It does not delete them.  It maybe just does not need to refer to them.

MR ODGERS:   Well, we say that it was left out ‑ ‑ ‑

FRENCH CJ:   I understand.

MR ODGERS:   ‑ ‑ ‑ deliberately and that that was because the view was taken, I am now descending in to work out why, but it was done deliberately so that when a judge is coming to apply 97, a safeguard designed to ensure that tendency evidence only comes in if certain requirements are met or 137, a safeguard designed to prevent miscarriages of justice, we say that in performing that task the judge is not constrained in the way the judge was constrained when assessing relevance. 

The judge is not constrained and required to assume that the evidence will be accepted.  That is not what the judge is doing and deliberately intended to be the case that the judge is not constrained in the same way that the judge was constrained when assessing relevance and that is because there are concerns about certain categories of evidence or there may be concerns about risks of prejudice which necessitate that a judge is not constrained in that way.

BELL J:   When you mentioned risk of prejudice a moment ago, you introduce the second half of the 137 test which really is directed to other considerations than probative value.

MR ODGERS:   Yes.

BELL J:   But the difficulty you face is the observation that Justice Gaudron made in Adam ‑ ‑ ‑

MR ODGERS:   Of course.

BELL J:   ‑ ‑ ‑ how can evidence, if you do not assume that it is accepted, how can it rationally affect it.

MR ODGERS:   Of course, I will be coming to that but I do need to - I have tried to demonstrate that it is not correct to say that because the words are found in the definition of “relevant evidence” that somehow that means that the assessment of probative value proceeds on the same assumption. 

We say that the converse is true, that while assessing relevance requires that assumption to be made, the definition of “probative value” which deliberately left out those words, does not require that assumption to be made and that those words were left out, presumably deliberately, in order to remove the constraint that applied to the assessment of relevance.

KIEFEL J: I think one aspect of your submissions might deny the steps in which evidence is considered and dealt with. As I said, section 55 is a gateway provision. The test has been done and resolved before you get to determine tests like probative value which are additional tests. They are not different and stand apart. They are tests which are applied one after the other.

MR ODGERS:   Of course.

GORDON J:   As the diagram at the beginning of Chapter 3 points out. 

MR ODGERS:   Of course.  All evidence must be relevant.  If it is not relevant it does not come in.

KIEFEL J:   Quite so?

MR ODGERS:   So, there is a relevance gateway but we say it is a relatively undemanding gateway.  Then the Act imposes other gateways or hurdles to be jumped.  Hurdles, I prefer to use that analogy, and 97 is one such hurdle and 137 is another such hurdle.  So, the question then becomes, even though this evidence is relevant as defined in 55 must it nonetheless be excluded and the Court is required to apply the hurdle as defined in 97 and 137 and for tendency evidence the hurdle is significant probative value.  Probative value is defined in a way which draws on some of the words of relevant evidence ‑ of relevance ‑ but take some away and add some.  It becomes a question of assessing an extent, not just whether it is relevant or not. 

Even evidence which would have minimal probative value would be relevant because relevance is not a demanding test, it just has to affect the probabilities even minimally.  So that is one important difference.  It is a question of extent.  What is the extent to which it could affect the probabilities?  But, we say, the omission of those words “if it were accepted” means that the judge in assessing that extent is not constrained when looking at this hurdle to assume that the evidence will be accepted.  That is the best I can express it.

KIEFEL J:   Just a point of clarification – do you say that section – after the section 97 question is resolved that section 137 may nevertheless be applied?

MR ODGERS:   Yes.

KIEFEL J:   So, there can be further tests.

MR ODGERS:   Yes.

KIEFEL J:   Do you contend for that in relation to the tendency evidence?  I was not sure about that.  It is only in relation to the ‑ ‑ ‑

MR ODGERS:   No, it is rather confusing because the Court of Criminal Appeal dealt with 137 in the context of tendency evidence where it really was not argued there. 

KIEFEL J:   Yes.  So, it is only in relation to the complaint evidence you were ‑ ‑ ‑

MR ODGERS:   It was the complaint evidence where it was really argued.  That is not surprising because, of course, as your Honours would appreciate, section 101 imposes a balancing test which is even more restrictive for tendency and coincidence evidence led by the prosecution in a criminal trial and 137 would not really have any work to do if you said it got through the 101 hurdle, if I could use that language.  But, we say, the evidence did not or could not get through the 97 hurdle or it would be open to conclude it did not if the test were properly applied.

GAGELER J:   Mr Odgers, can I just confuse things a little by asking a really basic further question of terminology? When section 55 refers to evidence that “if it were accepted”, does it simply mean if it were accepted as a truthful statement or does it mean something different?

MR ODGERS:   We understand it to mean if it were accepted as reliable which means not only truthful but evidence in respect of which reliance may be placed – to use our formulation of the word “reliable”.

NETTLE J:   Factually correct.

MR ODGERS:   Yes, precisely.  Thank you, your Honour.  Factually correct, yes.  So, to take an example – when an identification witness says, I identify the accused as the person who committed the offence, that evidence, in assessing the relevance of that, it will be on the assumption that the witness’ assertion that the accused was the offender will be accepted as factually correct.

NETTLE J:   Yes.

MR ODGERS:   So, not much difficulty in concluding that that witness’ evidence is relevant. We say when you are assessing the probative value of that identification witness for the purposes of 137, it may be different. What I mean by that is that factors bearing on the reliability of that identification witness can be taken into account in assessing the probative value of that identification witness whose evidence is relevant but may nonetheless be of low probative value. I am getting ahead of myself a little. So, that was the argument relating to statutory context and the words of section 55 and we have dealt with that in our written submissions at page 7 and I will not say any more.

We then argue that the approach taken – that I will call the restrictive approach – in Shamouil and other decisions of the Court of Criminal Appeal of New South Wales and, of course, the Court of Criminal Appeal in this case in the Northern Territory effectively adds words to a statutory definition and we say that, in accordance with general principles of statutory construction, paragraph 6.21, there has to be a proper basis shown for adding words like that.

This leads me, of course, to what Justice Gaudron said in Adam because that may well be what this appeal turns on, to some extent, at least. If I could take you to that judgment. It is reported in (2001) 207 CLR 96. The facts of the case need not concern your Honours. I do not think they bear on this case. Indeed, her Honour was discussing the words “probative value” in the context of section 103 and that provision has been amended. So, again, it is not directly relevant but what matters is her Honour’s observations which was in a dissenting judgment, of course, and the other members of the Court did not refer to this issue at all. We have drawn attention to what we say is a contrasting approach taken by Justice McHugh in Papakosmas and I will come to that in due course.  In Adam, at page 115, her Honour said at paragraph 59:

The dictionary to the Act defines “probative value” to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” –

Then her Honour notes that –

echoes the substance of s 55(1) –

And then her Honour notes that it –

differs from s 55 in that it is not predicated on the assumption that the evidence will be accepted.

We agree with that, and that is partly our response to Justice Kiefel’s question asked of me.  Then, paragraph 60 –

The omission from the dictionary definition of “probative value” of the assumption that the evidence will be accepted is, in my opinion, of no significance.  As a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted.  Accordingly, the assumption that it will be accepted must be read into the dictionary definition.

We, with great respect to her Honour, take issue with that logical analysis.  We have dealt with it in the written submissions at paragraph 6.23.  The point we make there is that – we may agree, that if evidence is not accepted, if a tribunal of fact comes to a positive conclusion that a witness is completely unreliable, or manifestly a liar, that evidence will not affect the assessment of the probabilities.

We say that there are degrees of acceptance, and degrees of probative value.  If you completely reject evidence, it would have no weight, but on the other hand, a rational fact finder may not completely accept evidence, harbour doubts about truthfulness or harbour concerns about reliability, and give less weight to the evidence by reason of those considerations.  The evidence will still rationally affect the assessment of the probabilities.  It will still have some weight, but that weight will be less than it would have had if the evidence were completely accepted.

FRENCH CJ:   But the terminology of reading into the dictionary definition the assumption that the evidence is accepted may not be apposite in dealing with the constructional point, I think, put to you by Justice Kiefel.  What I put to you is this; do you accept – I know your submission is to the contrary in terms of the preferable construction – that it is a construction that is open that the definition of “probative value” is made on the premise that the evidence is relevant and that it is accepted?

MR ODGERS:   It is made on the premise that the evidence is relevant ‑ ‑ ‑

FRENCH CJ:   If accepted.

MR ODGERS:   ‑ ‑ ‑which in turn is determined on the basis that it will be accepted.

FRENCH CJ:   In other words, without reading in anything, it just forms part of the logical structure.  I am just putting to you, is that construction open, or do you say it is simply not available on the text?

MR ODGERS:   It is not available.  I say it is not available.

FRENCH CJ:   Can you explain why?

MR ODGERS:   Upon risk of repeating myself.

FRENCH CJ:   Well, I am not sure that you have explained why it is not open.

MR ODGERS:   It is my own inability to explain something clearly.  There are two hurdles.  One is a test of relevance and that is a relatively easy hurdle to jump because it requires the judge to assess relevance on the assumption the evidence will be accepted.  We have a special hurdle for tendency evidence, as expressed.  It is a different hurdle.  It requires an assessment of significance but it also requires an assessment of probative value, which is defined in a particular way. 

It is defined in a way different from relevant evidence in that it does not require the judge or the court to assume that the evidence will be accepted so that, in determining whether or not that hurdle has been jumped, the court is not so constrained as it was when it was assessing relevance and, therefore, it would be reading words in that are not there, when they were deliberately left out, because the intention manifestly of the legislature was that the court was not to assume that the evidence would be accepted when it was assessing the probative value of that evidence.  That is what we say is the inevitable and only conclusion.

FRENCH CJ:   It just strikes me that there are some conclusionary statements embedded in that argument which really do not negate the textual possibility that I put to you.

MR ODGERS:   It may be that, when I take your Honours to Papakosmas I think I will be placing some reliance on the analysis of Justice McHugh and I think, to some extent, I have been probably putting it not as well as his Honour put it when he analysed the interrelationship between relevance and an assessment of probative value for the purposes of 137, so it may well be that I will be pointing your Honours to that as a better answer than the one I am able to give.

KEANE J:   To the extent that there are textual possibilities pointing either way, is it a reason to prefer the view put against you that it is more respectful of the role of the tribunal of fact?

MR ODGERS:   Your Honour, we accept that there are competing policies in this area and they were competing policies which informed the approach of the Law Reform Commission and informed Parliament when it enacted the Act.  On the one hand there is undoubtedly a policy which gives deference to the role of a jury and takes the view that you want juries to determine the facts and, on that premise, all relevant evidence really should go in and they should be able to make a judgment on the basis of all the material that is available to make an accurate, factual determination.  That is a legitimate policy concern, desire or goal. 

But there is a competing policy or there are competing policies. One of those –and we say Chapter 3 of the Evidence Act is a manifestation of that –is that the rules of evidence perform a gatekeeping function that exclusionary rules are designed to impinge on the jury’s function in that sense and to prevent the jury from receiving or hearing evidence which is relevant for good reasons - at the end of the day the quality of the evidence that comes before the jury and that, particularly in criminal cases, there is a policy which is also significant which is that the rules of evidence are designed, in part, to minimise the risk of a miscarriage of justice and that evidence which is relevant might, nonetheless, be excluded if there are particular reasons to believe that it creates an unacceptable risk of a miscarriage of justice. 

There are exclusionary rules which are premised on that assumption.  Then 137, we say, involves that kind of analysis so that is a competing policy concern and these things are juggled by Law Reform Commissions and Parliaments and, to some extent, courts in interpreting provisions and we do not shy away from the proposition that an argument against us is the one that if one gives particular significance to jury deference or the policy of jury deference then that would necessarily mean that you would take a fairly restrictive view of assessments of significant probative value for the purposes of 97 and also a fairly restrictive view of assessments of probative value for the purposes of 137.

KIEFEL J: At the policy level that you are talking about, and at what I think is generally accepted fundamentally as the role of judge and jury, the example that you gave earlier of why a judge might determine in relation to determining probative value whether a person is manifestly a liar – why is that not par excellence a question for a jury? Why should a judge be determining it? The second question is: if one returns to the statute, one should be able to discern from the statute what the roles are rather than the other way around. In section 55, is that not a strong indication that the role of the judge is to proceed upon the basis of acceptance of the jury and then deal with the matter by way of direction otherwise?

MR ODGERS:   Absolutely.  The effect of 55 is that absent some other important consideration, which may be a concern about a certain category of evidence being particularly dangerous or a concern that there is a particular reason for thinking that the tribunal might be misled – absent those considerations – the proposition of jury deference means that relevance is assessed on the assumption it will be accepted and that will mean that the evidence will be held to be relevant relatively easily and the jury will get to hear it.

KIEFEL J:   You alter the role for the purpose of section 97.

MR ODGERS:   We say that statute alters the role, the statute, because we are dealing with a particular category of evidence in this case, tendency evidence, which carries with it particular risks and dangers and which justify a particular gatekeeping function, which require a particular gatekeeping function, and in criminal cases a particular concern to guard against miscarriages of justice that a particular hurdle is created which does not require the same level of deference that is required when assessing relevance. 

I am now reading in policy to the formulation of these provisions, and I am hesitant to do that, but we would say that 97 reflects a policy concern that there is a particular danger with this kind of evidence in terms of accurate fact finding and that it is necessary to impose a hurdle and that the hurdle is one which allows or requires a judge not to assume that the evidence will be accepted but to assess its rational capacity to affect the probabilities unconstrained by any such assumption.

Can I say, just so we are very clear about this, we say that the definition of “probative value” does not require a judge to assess weight.  It does not require a judge to make judgments about reliability or credibility, to make findings of fact about reliability or credibility.  What a judge is required by the definition to do is to ask what it would be open to a rational fact finder to find or, rather, what weight would it be open to a rational fact finder to give the item of evidence, but unconstrained by an assumption that it will be accepted by the fact finder.  The judge does not do that.  The judge does not assume it will be accepted.  The judge does not assume that the evidence is reliable, for example.

KIEFEL J:   But it is taking on the role of the finder of fact.  You have just said that – you say what is open and rationally defined.  That is going beyond a qualification of the evidence as having a particular degree of value to the question of fact before the jury.  It is to answer it for the jury.

MR ODGERS:   We adopt what the Victorian ‑ ‑ ‑

KIEFEL J:   How would you apply it in the present case?  I think you have conceded that of itself the evidence, the tendency evidence would have significant probative value of sexual interest in the complainant.

MR ODGERS:   If it were accepted.

KIEFEL J:   If it were accepted.

MR ODGERS:   Yes.

KIEFEL J:   So you would say the trial judge should undertake what task and determine what?

MR ODGERS:   What is the extent to which a rational fact finder could conclude that this evidence affects the probabilities that the accused committed the offences charged and without an assumption that the evidence will be accepted and that if one performs that role or task the conclusion that you would reach is it does not have a capacity to significantly affect the probabilities because it comes from the very person whose credit is in issue in the trial and, adopting the language of Justice Bell, for that reason it lacks significant probative value.

FRENCH CJ:   That is almost an inherent, if you like, characteristic or an attribute of the evidence.  It does not involve so much a weighing – because it involves what you suggest is an element of bootstrap reasoning that you say that it lacks significant ‑ ‑ ‑

MR ODGERS:   When one applies the words of the definition and asks what is the extent to which that evidence could rationally affect the probability that he committed the offence as charged.  If you do not assume it is going to be accepted, if you do not do that, the conclusion you would draw – a rational fact finder would draw is it cannot have a significant bearing because it comes, in this case, from the person whose credibility is in issue.  You are not adding in a requirement of corroboration.  You are not doing anything other than applying the words of the definition. 

KIEFEL J:   Well, are you not adding the words “because it cannot be accepted by the jury”?

MR ODGERS:   No, I am not adding those words, your Honour. 

KIEFEL J:   It will not be accepted by the jury because they will put no weight upon her evidence.

MR ODGERS:   Then they could not.

KIEFEL J:   They will not accept her as a witness of truth.

MR ODGERS:   A rational fact finder – a rational fact finder would or could, could not say that that is significant evidence.  Why?  Because it comes from the very person whose credit is in issue in the trial.

KIEFEL J:   But the jury at this point has not received all of the evidence at the trial so that they are able to form a view about her credibility as a witness.

MR ODGERS:   No, but there was never any suggestion from the Crown in this case that there would be any other evidence which would ‑ ‑ ‑

KIEFEL J:   But you cannot determine these questions by reference to other evidence, in any event.  They are of their nature a voir dire‑type question.

MR ODGERS:   We say that as a practical matter the way that these things work is that the Crown would be given an opportunity to say, well, we say there is going to be other evidence which bears on this question and can explain what that evidence will be and the judge is required to take that into account and it may be done in a relatively informal manner.

KIEFEL J:   It can have regard to other evidence.  But you are not – but what section 97 does not talk about is the view of the whole trial that the jury will have which is distinctly different from the view that a judge will have where at a particular point the Crown is able to add bits of evidence together.  The jury is going to have a different perspective.

MR ODGERS:   Your Honour, the judge is required to engage in an assessment.  It may be the judge is not able to do it at a particular point in time, in which case it may be the judge will say we will have to leave that until later, but I put that practical point to one side. 

Can I just explain it this way?  If the Crown had said to the judge at the time that the tendency evidence issue – admissibility was being considered _ “Your Honour, we will be calling another witness, the person who was present at the time of the massage.  That person will also testify that she saw the accused run his hand – touch the leg of the complainant”.  So, hypothetically, let us assume that that were to happen.  In that situation, it would now be a situation where there is evidence from somebody else whose credit is not fundamentally in issue in the trial already and where the judge would undoubtedly conclude that in the circumstances the evidence now did have significant probative value because it came from a different source.  It might be an admission by the accused. 

But in this trial it was understood from beginning to end – and certainly it was understood by the trial judge at the time of ruling on admissibility because the complainant herself had so testified – that the other person did not see this incident.  The only source of evidence of the tendency was the complainant and at the end of the trial that would be the only source of the evidence.

So, it was understood, and the Crown never sought to suggest otherwise, that the only source of the evidence of tendency in the trial would be the complainant, given that, we say, that the only rational, reasonable – the only proper or correct conclusion is that the evidence could not have significant probative value.

NETTLE J:   But if that were true then in every case in which the complainant gives evidence of either uncharged acts or – to use the old language - similar fact, you would say that the judge would have to conclude that it could not materially add to the probability of a finding of guilt.

MR ODGERS:   In those cases it would not come in as tendency evidence.  The jury would not be invited to engage in tendency reasoning or propensity reasoning, to use the common law language, and it would come in simply as “context”.  With respect, your Honours, that is what has pretty much always happened in the past.  Until the last couple of years, I have not been able to find a case under the common law, certainly, where Crowns have even tried to rely on evidence of a complainant’s allegations relating to other incidents to show a propensity ‑ ‑ ‑

KIEFEL J:   I think you will find that there are such cases.

MR ODGERS:    ‑ ‑ ‑uncorroborated ‑ ‑ ‑

KIEFEL J:   I think you will find that there have been such cases.

MR ODGERS:   Well, so be it, your Honour.  If I am wrong, I am wrong. 

KIEFEL J:   How, in any event, would you get it in as context evidence?

MR ODGERS:   On the same basis that the judge allowed in evidence from the complainant that there were other incidents involving – in this case it may not be appropriately allowed in as context evidence, whereas the other incidents that she gave evidence of fitted within – explained why there might have been delay and complained, or explained why she might have acted in the way she did – she alleged she did at the time of the commission of the particular offences.  This was six months after the last charged offence and it is difficult to see how it would really bear on the credibility of the complainant that she alleged that there was this other incident.

So, I am not saying it was admissible as context evidence but in response to his Honour Justice Nettle I am saying that evidence from a complainant of other uncharged acts – if it comes from the complainant – would be generally admitted usually as context evidence to put the allegations relating to the charged acts in the complete context of her complete story.  Is that answering your Honour?

NETTLE J:   That certainly answers it, thank you.

BELL J:   Testing the policy aspects of the discussion but by reference to another example - you spoke of the reasoning in Shamouil as supporting what you describe as a restrictive approach which you contend is in error.  In Shamouil what was said was the trial judge had erred in taking into account her assessment of the credibility and reliability of a witness who had made a photographic identification and the trial judge did that because the witness had subsequently retracted that identification. 

In saying that the trial judge had erred in taking into account the impact on the credibility of the witness of the later retraction, the Court of Criminal Appeal saw it as the function of the jury to weigh the significance of that matter in the context of the evidence as a whole, when a number of other inferences were available, from the circumstance of an initial forceful identification and a subsequent retraction in the context of the whole of the evidence.  That relied on taking an assessment of the probative value of the evidence upon an assumption that the jury might accept it.

MR ODGERS:   Would accept it?

BELL J:   Well, on the assumption that in determining the significance - no, it was not, it was a 137 consideration.  In determining probative value versus danger of unfair prejudice, one assumed that it would be open to the jury as a rational fact finder to accept this evidence and so that is how the court dealt with it.

MR ODGERS:   Yes.

BELL J:   Turning to your example in your outline, you talk of the identification carried out in sort of circumstances of distance and fog and every other difficulty that could be imagined.

MR ODGERS:   Yes.

BELL J:   Now, if there was some prejudice about such evidence, some risk of unfair prejudice, a court applying Shamouil, as I understand it, might well say the probative value of this evidence is relatively low because it is an identification on a foggy day, in darkness, by a person, someone they have never seen before, at a great distance.  None of that involves the court getting into a consideration of the strength or otherwise of the credibility of the identifying witness.  So, in the way Shamouil speaks of credibility and reliability, it may be pejorative to speak of it as a restrictive approach.  That is the matter I am raising.

That is why – again, if I may abbreviate things given the hour – as we have argued in our written submissions, particularly by reference to the directions that your Honours have seen, we give the citations in our proposition 8 ‑ there really is no substance in the proposition that the jury could have thought that outside the support for the offending conduct by evidence of the complaint as complaint of the offending conduct, the jury would give, as it were, some unrestrained and illegitimate tendency use to the complaint evidence if they rejected it on the basis that her Honour explained it could be used.

In our submission, this part of our learned friend’s argument really comes very close to supposing that the jury would not follow the directions given to them about the only way in which the complaint evidence could be used.  It is for those reasons that the argument that says that the unexceptionable warning and restriction in relation to tendency evidence – two pages before the otherwise unexceptionable reference to complaint evidence – does not amount to a failure by the judge to give an appropriate warning, far from it.

In truth, once the complaint evidence was plainly described by her Honour as she does, once it is correctly, as her Honour does, confine it to the use that can be made of it if the jury is satisfied it is complaint of the offending conduct, then that is the end of any defect in the summing‑up.  In our submission, the Court of Criminal Appeal, with respect, was plainly correct in rejecting the notion that the jury could have been in any way misled, let alone to the unfair detriment of the accused in that regard.

That brings us then to the matter of disputed fact concerning which my learned friend was so bold as to say there was only one possible conclusion of fact and it does not matter whether that is voir dire or jury ‑  I think it will make no difference to either his or my argument on the point ‑ namely, that the complaint to the friend could not have been at the time that the Crown submitted it was.

Now, I do not want to rehearse the way in which the Court of Criminal Appeal starting in paragraph [6] and continuing thereafter in Justice Kelly’s reasons demolishes that proposition, if anything, to the extent of almost reversing it.  In particular, you will see the telling tally of the event to hospital and marriage breakdown and complaint and the notion that a jury ought not be able to decide for itself what parts of a witness’ evidence is credible and reliable and what is not is totally contrary to the usual way in which a jury is set out at the beginning of its task and sent off at the end of its task to consider all the evidence.

In our submission, that cannot possibly amount to a miscarriage.  That was something which was properly within the jury’s grasp and there has been really no attempt at all to grapple with the way Justice Kelly analyses the reasons why the preponderance of the evidence in fact did support that which the Crown argued. 

In proposition 9 in relation to section 136 we make a point which we earnestly hope is not seen as unmeritorious from the Crown but this is a jurisdiction either in error or to correct miscarriage and it really is impossible to detect error in failing to do something one is not asked to do and there could not be a serious possibility of a miscarriage in a case where an accused is properly represented arising from the same circumstance.  So that though it is persisted in in this Court, section 136, in our submission, should have no part in any holding in favour of the appellant. 

Your Honours, that just leaves one matter that I was going to add the reference to HML to.  It is our proposition 5.  This is another area where it does occur to us, having heard the exchanges today, that there may not be so much difference between the parties.  Let me explain.  At one stage, I fear, we understood the case we were to meet in relation to that part of the evidence was that simply because it came from the complainant it could not have significant probative value.  That is what we meet in our proposition 5.

We understand that is not the case and, in particular, it is not the quality of the witness as complainant, let alone, God forbid, a female or young complainant that produces the argument.  Rather, we understand – and here we may be absolutely hand in hand – it is a caution against a bootstraps credibility argument.  If it is, then the Crown has no interest whatever in arguing for a bootstraps argument:  “You should believe me

about what happened on Wednesday because I am now telling you what happened on Monday”.  That is ridiculous and we are not arguing that, of course.  But there has never been a rule that uncharged acts which we know can be proved can only be proved by anybody other than the victim of them.  That is simply our point.  It then becomes a matter for the assessment of the jury as to whether or not such evidence makes more probable the existence of the fact in issue concerning – that is, producing a conclusion about – the offending.

BELL J:   If it was an error to admit that the evidence of the massage incident as tendency evidence because it did not meet the statutory test, then evidence was admitted wrongly from the complainant of a furthering of another incident and the jury were given a direction that if they accepted that it could be used by them as some evidence of the commission of each of the offences by way of showing sexual interest.

MR WALKER:   Unquestionably.

BELL J:   Was it contended and was either the proviso engaged or, on another view, was it put that the admission of this evidence had not constituted a miscarriage of justice?

MR WALKER:   I do not think so.  No, there was no argument below to that effect and I am bound to point out that the first thing one would, in any event, look askance at in relation to such an argument is whether there were adequate directions and warnings for the alternative use which was not the use to which it was put.

BELL J:   That is the very matter.  We are not just looking here at the admission of evidence that ought not to have been admitted.  We are looking at evidence being admitted for a purpose and directions given.

MR WALKER:   Quite so, and I have nothing to say to detract from the significance of that circumstance.  Quite so.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Mr Odgers.

MR ODGERS:   I will try to be as brief as I can.  My friend relies on the power of the court – a requirement to give warnings.  Where probative value is taken into account and, we say, reliability concerns have not resulted in exclusion because the court is not satisfied, say, under 137 that the probative value is outweighed by danger of unfair prejudice, then it goes without saying that it may be appropriate to give a warning to the jury.  The anticipation of giving that warning will be taken into account by the court in applying 137 because it will take into account that the warning is going to be given for the purpose of considering whether or not there is a danger of unfair prejudice.  It may well be that the anticipated warning will reduce the danger of unfair prejudice and, therefore, justify admitting the evidence.  But, the existence of warnings does not, we say, support any kind of approach which diminishes, or undercuts, or constrains the proper application of 137 and the other provisions that we have been talking about.

I have to confess in respect of the question of what it means to say evidence is assumed to be accurate, my friend, I think – we were talking about the example of a witness says, I saw the accused come out of the door – make some identification.  As I understand it, what is put is that properly analysed, that is an opinion that a person came out of the door and it is submitted that it should be assumed that that is truthful and reliable as an opinion in the sense that it is assumed that the person did hold the opinion and it is assumed that he is reliably recounting his opinion but that that is as far as it goes.

So, that seems to suggest ‑ and we are not sure ‑ that you can take into account, for example, reliability concerns relating to whether it was in the dark or whether it was identification of a stranger or there was a short time to observe that that is not caught by the assumption that seems to be the proposition.  But it is quite unclear whether or not on that analysis you can take into account that there are reasons to believe that it was a florid fantasy, that is the point that has gone between the Court.  We say, you must be allowed to take that into account when you are assessing probative value under 137.

It is not clear whether you can take into account that the witness has a very strong financial interest to implicate the accused or that there is a particular obvious bias or that there are other comparable matters like those referred to by the Australian Law Reform Commission when it talked about reliability concerns.  As I understand it, the contention remains that those kinds of matters must be disregarded.  Our contention is, as your Honours appreciate, that the judge is not so constrained that all its relevant material to an assessment of weight may be taken into account but in the context of a judgment as to the rational capacity of the evidence to establish a fact in issue.

That leads me to the question that Justice Kiefel asked.  We adopt what Mr Walker said, I think, that whether or not the accused had a sexual interest in the complainant is not a fact in issue in the proceeding.  What is the fact in issue in the proceeding is whether or not he committed any of the offences charged.  Evidence showing a sexual interest will be relevant to that, plainly, but the question would be whether or not the evidence of the uncharged act said to show a sexual interest had significant probative value in proving that the accused committed one or other of the offences charged and our contention is, properly analysed, that test was not met in this case.

Of course, I would just like to make it very clear that we made no concession that 101 was satisfied.  Our position was ‑ and it was argued in the Court of Criminal Appeal ‑ it does not appear that 101 was argued in the trial.  On that basis, we just ran 97 in the Court of Criminal Appeal and that is all we are running here, but there is certainly no concession that 101 was satisfied in this case.

I think Justice Keane raised with my friend a question relating to the possibility that evidence, for example, from a complainant that there was a massage and a hand was put on the leg might have increased probative value in certain circumstances because of other evidence in the case or something of that sort.  We completely accept that proposition at a theoretical level.  Indeed, we say that if there were some basis for that the Crown Prosecutor can draw the attention of the judge to it when the question of admissibility is being considered.

But we know now in this trial there were no such circumstances or evidence which would enhance the probative value of the evidence relating to the hand on the leg.  The Crown Prosecutor did not even cross‑examine the accused about the incident and did not point to any aspect of the evidence which gave it particular weight.  It was essentially something that the prosecutor relied on but never put any basis for concluding that it had particular weight when it came to the jury determining the case.

It is not a grooming situation because it occurred six months after the last offence, so you cannot reason to significant probative value on that basis.  Grooming might support a conclusion that the evidence has real significance for credibility purposes, but that is not this case because, on the complainant’s account, it occurred six months after the last charged offence and it is difficult to see how it could have been used in any relevant way to show context or credibility purposes.  But, at the end of the day, we say that there was no basis shown, and none is evident, on which it could be concluded that it has significant probative value.

Two last points:  your Honour Justice Bell raised the question of 138(3).  We use that in our favour.  We say that, plainly, probative value is not limited to an assessment of importance, that that necessarily flows from the fact that the two concepts are separate.  The restrictive approach, however one classifies it, where you assume the evidence is to be accepted – on one view, that really does limit probative value to an assessment of importance in respect of a fact in issue.  You assume it is going to be accepted, and then really the only question that remains is how important is it?  We say that the existence of 138(3) demonstrates that probative value is not so limited – it is a small factor in that assessment.

Lastly, in respect of the complaint evidence, no challenge was made in the Court of Criminal Appeal to the ruling under section 66 that the assertions in the complaints were fresh in the memory of the complainant, but it is very important to remember the content of those assertions.  The assertions were “he has touched me in the past” – that is to SS ‑ I am paraphrasing, your Honours understand – and the other assertion was “many, many times he has touched me and lain on me naked”.

Those assertions can be understood to be fresh in the memory.  It is open to conclude that she would have a memory that is fresh, that he had touched her a lot, or that he had done many things a lot.  To that extent, it is well open to conclude it is fresh in the memory.  We do say that you cannot use that kind of general assertion to encompass the charged offences, because the charged offences – some of them were many years in the past, and there is no basis to conclude that in respect of the specific offences that those were fresh in her memory.

When one is assessing the probative value of the evidence and the use that properly can be made of it, it is permissible, we say, to take into account that it is very general, to the extent that it is said to encompass specific offences, it does not fall within the terms of 66 because it cannot be said there is no basis for concluding that if you assume that it encompasses the specific offences that that assertion related to an event that was fresh in the memory, and that is a matter that goes to the exercise of the 137 discretion.  May it please the Court.

FRENCH CJ:   Thank you, Mr Odgers.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 4.34 PM THE MATTER WAS ADJOURNED