Lawson v the Queen S155/2000

[2001] HCATrans 618

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S155 of 2000

B e t w e e n -

LESLIE HAROLD LAWSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 NOVEMBER 2001, AT 11.20 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   If the Court pleases, I appear with MR G.J.L. SCRAGG, for the applicant.  (instructed by Jacovou Barlow & Associates)

MR R.D. ELLIS:   If the Court pleases, I appear for the respondent Crown, in that matter.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

McHUGH J:   Yes, Mr Basten.

MR BASTEN:   As your Honours will perhaps be aware, this application was originally stood over to await the decision of this Court in Adam, which also dealt with section 60 of the Evidence Act.  We say that Adam does not assist greatly in determining the outcome of this case.  The correct approach to the question of the admission and use of medical histories, histories given to medical practitioners, is not to be found in any formal application of a broad statement of principle as in section 60, but by careful attention to the basis on which it is said that the evidence is relevant.  That is at two stages.  Firstly, in relation to the medical opinion itself and, secondly, in relation to the matters in issue in the case.  That concept of relevance is in similar kind to the question of causation, namely ‑ ‑ ‑

CALLINAN J:   Mr Basten, could I ask you this.  What is the argument that evidence of an account to a doctor “is relevant for a purpose other than proof of the fact intended to be asserted by the representation”?  I am looking at section 60.  What other purpose can it be relevant for?

MR BASTEN:   That, with respect, is the problem that we see in the way in which it is dealt with, and in a case ‑ ‑ ‑

CALLINAN J:   It is not relevant.  It seems to me that it is not relevant in any way at all, initially, because, as Justice Sperling pointed out, the proper way of proceeding is to put to an expert, “I would like you to assume these facts”.  Then the facts are either proved or they are not proved, but they have no relevance at all, it seems to me, for any purpose at all at the stage at which they are put to the expert as the basis for his opinion, but as an assumption only.

MR BASTEN:   Yes.  We would accept that, with respect, at least in the majority of cases.  Welsh’s Case itself, because it dealt with a concept of mental disability or diminished responsibility may perhaps be a case in which what was said by the person to the medical practitioner may be relevant, but again, subject to what your Honour ‑ ‑ ‑

CALLINAN J:   There may be occasions when it is an admission, an admission against interests, but not this case.

MR BASTEN:   Yes, that is so.

CALLINAN J:   That is a classic case in which it is relevant for another purpose.

McHUGH J:   Does not Ramsay v Watson establish that what is said to the medical practitioner is evidence of the facts themselves, evidence of the complaints is evidence of the facts themselves, evidence of the symptoms?

MR BASTEN:   Indeed, your Honour, there may be evidence of symptoms.  That is why I said in Welsh what you say in the concept of an assessment of a medical intellectual disability may, of course, involve a level of relevance which a history to a case does not.

CALLINAN J:   I said much to that effect in a dissenting judgment in Melbourne.  I referred in detail to the manifestations of the disability being what was actually said.

MR BASTEN:   Yes, that is so.  Your Honours, the proposition which has been derived from Welsh and, with apparent approval, in Lee’s Case, for this Court of Ramsay which your Honour the presiding Judge referred to in a passage which appears at page 12 of our bundle, is really too broad a statement, with respect, to be accurate.  Unless one does attend to the basis on which the material is put, error may follow,  When your Honour puts to me the account of the symptoms, it may, of course, be a question which, itself, will give different results.  In some cases it may be that the symptoms as recounted by the patient are of critical importance.

McHUGH J:   But does not Watson v Ramsay go further and say that the history given to the doctor is always admissible?

MR BASTEN:   Your Honour, it says that in a particular context, yes.  It depends really upon admissible for what purpose.  That is why I say there are two stages.  Even if one accepts that the history may be relevant, there is another question which arises now under section 60 as to whether the evidence is relevant for any later purpose, and that was a point I was going to come to.  Your Honour, when one looks at a history, it too has several elements to it.  It may be that the history, as in this case, includes factual elements which are of no concern directly to the opinion of the expert, including who it was that may have caused a particular harm or be alleged to have caused a particular harm. 

In this particular case the identity of the person who may have caused the harm was not relevant to the expert’s opinion.  So that on any view, one needs to ask the question in relation to parts of the history in order to understand how the concept of relevance would apply.

If I might just say in relation to the second aspect of the matter, I was going to say that there is an evaluative judgment involved in the concept of relevance.  That is reflected, perhaps obliquely, in the passage which appears at page 24 of our bundle from Papakosmas v The Queen 196 CLR 297, in the joint judgment of your Honour Justice Kirby with Justice Gaudron at paragraph 57. In dealing with – and this is the second stage of the problem – “a statement that is not closely contemporaneous” one needs to ask whether it can be said to be “probative of the facts asserted in it”. So that quite apart from the relevance at the stage of putting the material before the medical practitioner – and that, as Justice Sperling said, can be done in different ways – one needs to ‑ ‑ ‑

KIRBY J:   Mr Basten, for the reasons that Justice Callinan indicated at the outset, I think this is an important question, but you will have seen the respondent’s assertion that the combined effect of Lee and Papakosmas are to the point that this Court has already decided the matter by reference to the Law Reform Commission’s report and that this is exactly what the Commission intended to be the result.  Is that the case?  If that is the case, I will abide by what the Court has said.  The last thing we want is reopening of issues on this Act which have already been decided.

MR BASTEN:   Entirely, your Honour, yes.

KIRBY J:   If it is not the point, then I can see a real danger of a bootstraps kind, that people tell social workers and others things and that then that gets into a trial as evidence of fact, not as evidence of admissions, but as evidence of contested facts.

MR BASTEN:   Yes.  We do not contest the ‑ ‑ ‑

KIRBY J:   That is an important question.  But if Papakosmas and Lee have decided it, that is an end of it as far as I am concerned.

MR BASTEN:   Yes.  Can I put it in this way, your Honour.  Lee and Papakosmas undoubtedly accept, correctly in our submission, that the effect of section 60 is to reverse a principle of the common law which would have made this material inadmissible for that purpose.  That, however, raises the separate question as to the relevance of this material for the new purpose, and they say nothing about that.  Indeed, the passage in Papakosmas suggests that the question must still be asked.

KIRBY J:   Did the other Justices in Papakosmas deal with that point that Justice Gaudron and I dealt with, because I remember that point?

MR BASTEN:   Yes.  I think the answer is no, your Honour, because it did not arise quite in that way.  I do not think your Honour Justice McHugh dealt with it in your Honour’s separate judgment and I think that ‑ ‑ ‑

KIRBY J:   Is it inherent in the reasoning of the other Justices in Papakosmas that they thought that once it is in its relevance is established and, therefore, that you do not get a second bite of the cherry of exclusion, as it were?

MR BASTEN:   Not as I would read the judgment of the Chief Justice and ‑ ‑ ‑

KIRBY J:   Perhaps it is for Mr Ellis to try and persuade us of that.

MR BASTEN:   Yes.  That is not my reading of it, your Honour.

KIRBY J:   I have a very clear recollection with Justice Gaudron of reserving this issue and if, therefore, it has not been dealt with by the Court, then it is at least potentially an important question.

MR BASTEN:   Yes.  Well, we say it has not been, your Honour, and we would not suggest that Lee says anything about it either.  That passage at page 12 which I referred to at just above paragraph 40, simply restates the common law proposition and says that it has been overturned.  Now, that simply does not address the question as to what the material might be relevant to, and there is no ‑ ‑ ‑

KIRBY J:   There is the case of Mundarra Smith.  It was a holding by the joint judgment of the importance of relevance and of scrutinising the issue of relevance which hovers over everything and unless you get through the gateway of relevance, you are out.

MR BASTEN:   That must be right, with respect.  Whether it should have been dealt with in that way is a separate question, but we would say that is right.  The effect of section 60 is to overcome the inadmissibility which arose at common law by virtue of the hearsay rule.  It says nothing about whether relevance needs to be addressed and the scheme of the Evidence Act would require that one does still need to be persuaded that the material is relevant for the purpose for which it is now sought to be used.

McHUGH J:   But what is the miscarriage of justice in this case?  The evidence in the medical history was consistent with other evidence in the case.  The complaint was already before the jury in similar terms.  No objection was taken to this evidence at the trial and, in the Court of Criminal Appeal, there was only the formal submission that Welsh was wrongly decided.  Why should the Court grant special leave?

MR BASTEN:   May I deal with those in reverse, as it were.  In relation to Welsh, it may be that Welsh was correctly decided in its circumstances.  That was what I was saying in terms of diminished responsibility.  On one view of it, one does not need to get ‑ ‑ ‑

McHUGH J:   You would certainly have to overrule certain of the dicta in it, would you not?

MR BASTEN:   Yes, that may be right.  It depends how far one takes Welsh I suppose.  So we would, no doubt, need to question the extent to which it has application.

KIRBY J:   These are Justice Hunt’s dicta, are they?

MR BASTEN:   Yes.  At page 29 of the bundle – page 371 of 90 A Crim R – at about point 7 on the page, the material which Dr Bashir referred to is identified as demonstrating an “abnormality of mind was demonstrated by a major depressive disorder”, so that is the nature of the psychotic evidence.  The dicta of Justice Hunt deals with it at the top of page 27 of the bundle, 367 of the report:

They complain that the judge erred by directing the jury that the evidence given by the psychiatrists of the histories taken by them were not evidence of the truth of what they were told –

that is, upon which the basis of diminished responsibility could be established.  So that is quite specific to the defence raised in that case.  Then the key passage is, no doubt, at page 369, page 28 of the bundle, in the first full paragraph a third of the way down the page, where his Honour said:

Evidence of the history taken by a doctor has always been admissible, as I say, as establishing the basis upon which the doctor framed the expert evidence . . . As a result of s 60, evidence by a doctor of the history given to him or her by the patient and upon which the doctor bases his or her expert opinion is therefore now evidence of the truth of that history.

Taken in its broadest form, we would have to disagree with it.  Not taken in terms of the principle of the operation of section 60 though, it goes to questions of what one does with the material.

KIRBY J:   So is your point relevance is the taproot of evidence law?

MR BASTEN:   Yes.

KIRBY J:   Its importance has recently been emphasised by the Court in Mundarra Smith, and it is self‑evident.  The Court has not dealt with this issue in Lee or Papakosmas.  Two Justices of the Court reserved the question in Papakosmas.  It can give rise to bootstraps and great injustice to people if the principle is as wide as Welsh states it to be.  It is different from what has been the common understanding of the law and, in so far as it is a proviso case, that cannot really be fairly dealt with on a special leave application, if, in fact, an error has occurred.  That is a matter which the Court, on the return of an appeal, would have to take into account.

MR BASTEN:   We would certainly say all of that, your Honour, with respect, and not as well as your Honour has put it.  Could I just address that proviso question in answer to your Honour, the presiding Judge, in one respect.  The evidence in this case was ultimately word against word, so that the willingness of the jury to accept the complainant’s story was obviously critical to the outcome of the trial.  The matter was dealt with in a largely neutral fashion by the trial judge at the bottom of page 13.  It is really a passage which goes from page 13 to page 14.  Perhaps I can simply refer your Honours to page 14, at about line 35:

You have heard the history that Dr Norrie obtained from Crystal as to the things that were done and also who did it to her.  So that is her evidence.  Dr Norrie cannot say who did it, all she can say is ‘I have examined the child –

and so on.  At that stage it is put in a relatively neutral form.  The jury then goes out and the jury comes back in, as appears at page 25, and then a further direction is given at the bottom of page 26 to the top of page 27, which categorically puts the matter in the terms that we complain of at line 49:

The other thing I have been asked to point out to you is that when she saw Dr Norrie in July she complained to her of what had happened to her.  Now you have heard the evidence about that.  You are entitled to treat that evidence of complaint to Dr Norrie at that time as not only evidence of a complaint to her but evidence of the truth of the complaint . . . the truth of the matters complained of I should say, not truth of the complaint but truth of the matters complained of.

It is put in those terms as one of the last directions given to the jury and, if it is not correct to say that the jury should have been allowed to identify

matters such as the identity of the assailant, then that is a matter which, we would say, may well have given rise to prejudice.

McHUGH J:   What do you say about the fact that the evidence was not objected to?

MR BASTEN:   The evidence was objected to on the basis of complaints, your Honour.  There is a separate judgment about that.  There is some confusion as to exactly what happened by way of objection.  There was certainly objection taken to it being relied upon under section 66.

CALLINAN J:   There were significant problems about the defence in this case.  It is unnecessary to go into them, but Justice Sperling really gave a very long list of problems and, for my own part, because of that, I would not be terribly impressed by the fact that there was no objection. 

Mr Basten, coming from another jurisdiction, there used to be a very, very strict practice that you did not adduce evidence from experts of what was told to them unless it were related to symptoms or mental disability.  There is absolutely no reason why the matter cannot be put, “I want you to make these assumptions”, and that is how it should be put.  I think, for my own part, it is a very sloppy and wrong practice not to do it that way. I think it has crept in because of a laxness in personal injuries cases.

MR BASTEN:   Yes, that is what Justice Sperling hints at too in his Honour’s judgment, that it is a way of taking a history from the plaintiff and putting it in without needing to do so directly.

CALLINAN J:   Even then, it is often not admissible.  It is done frequently, but it is not.

MR BASTEN:   Yes.  With respect, we would accept what your Honour puts.  Your Honours, I think those are our submissions.

McHUGH J:   Yes, Mr Basten.  Yes, Mr Ellis.

MR ELLIS:   Thank you, your Honours.  Perhaps there are two issues.  There is the issue in terms of the interpretation of the Act.  There is then the separate issue, which is perhaps more a factual one, of whether in any given case, including this case, evidence is relevant.  The Crown says that so far as this case is concerned, the principles, in terms of interpreting the Act, have been determined by this Court in a combination of the decisions in Lee, Papakosmas and, more recently, in Adam. 

The structure of the interpretation of the Act and the way in which the Act is set out is clear, that is, there is a threshold test in terms of the relevance or otherwise of evidence.  There are then a number of exclusionary rules.  There are then exceptions to those exclusions.  There are then discretions, in terms of the discretion to reject the evidence under 135, the discretion to limit the evidence under 136.  Then there are the warnings which exist, for instance, under section 165. 

The Crown says that it is clear that that is the way in which the Act was intended to be interpreted when one looks at both the Australian Law Reform Commission reports generally, and certainly that is the way that this Court has structured its interpretation of the Act.

What is being asked here – and if we leave aside this particular case – but what is being suggested here is that even if evidence passes the test of relevance and then has potentially two, or perhaps more, particular purposes to which it can be applied, that even if an exclusionary rule is avoided, one then has to return to the relevancy test and establish that for each of the legs of the potential use of the evidence it passes the section 55 test.

There is an interesting number of sections which deal with these things.  Section 60 is not the only section in the Act in those terms.  Section 77 of the Act, which deals with opinion evidence, has an identical provision, that is, that if there is another purpose, then the evidence is admitted for the opinion.  Perhaps more significant than that is that section 91 and section 95 – and they are the only two sections as far as I am aware – are sections which, in fact, operate to exclude that second option.  I am not sure if your Honours have the Evidence Act, but in section 95 – perhaps I can read it.  It says:

(1)   Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.

(2)   Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even it is relevant for another purpose.

So that clearly indicates that there is a specific intent within the Act that for some provisions, where there is a second relevance or second use of the evidence, that that, in fact, can be used to avoid some of the exclusionary rules such as the hearsay rule and the credibility rule and/or the opinion rule.  But certainly section 95 deals with tendency and coincidence, and what it clearly says is even if that evidence gets in under another head, it does not get in as tendency and coincidence unless it passes the requirements of those provisions.

The Crown’s argument is that not only has this Court appropriately determined, with respect, the way in which the Act ought to be interpreted, not only has the Australian Law Reform Commission spelt out very clearly its intent in relation to section 60, but within the Act itself, the existence of section 60 and 77 establishes that where there is a twofold purpose, that twofold purpose can, in fact, avoid an exclusionary provision such as the hearsay rule.  But then, on the other hand, when such a twofold purpose is not desired, it is not a question of going back for a second relevancy test, it is a question of the Act itself providing, in particular divisions, namely the tendency and coincidence, and also in section 91, which relates to the use of judgments.  The Act itself prevents that second use, or dual use, becoming a means by which the evidence can be utilised. 

In Adam, for instance, the dual use determined that the credibility rule was avoided because there was, in fact, a hearsay use, and the hearsay rule was avoided because there was a credibility use.  This Court clearly enunciated that section 60 was intended to change the common law, it was intended to have this type of specific effect, and when one looks more closely at the Act, that is also very much consistent with the structure of the Act itself.  Even at common law ‑ ‑ ‑

KIRBY J:   I take the force of all of that and looking at these provisions in the structure of an Act, which, as you have described it, appears to have a flow, is an important obligation of a decision‑maker interpreting the Act.  On the other hand, two us of reserved this question in Papakosmas.

MR ELLIS:   What your Honours actually reserved was more a question – I will just turn it up:

The question whether, in the particular circumstances, a statement that is not closely contemporaneous (for example, a subsequent statement to police) is probative of the facts asserted in it can logically only be answered in a case in which those circumstances arise.

That really flowed on from the decision in Graham where the Court, under section 66, had made the specific determination as to the meaning of “freshness”.  All that is saying is that when you come to this question of relevance, if a piece of evidence is to meet that test, you have to determine it in each individual case.

CALLINAN J:   What is the other purpose here?  What is the other purpose under section 60?

MR ELLIS:   The other purpose in this case is to provide a basis upon which the jury can assess the validity or otherwise of the expert evidence, the expert ‑ ‑ ‑

CALLINAN J:   No, it is not, not at all.  The expert does not need the complainant to tell him these facts in order to reach an opinion.  All he needs is an assumed set of facts.

MR ELLIS:   That may be so, your Honour, but that does not ‑ ‑ ‑

CALLINAN J:   It is so.

MR ELLIS:   I am accepting that that may be so – that it is so, but that does not mean that the way in which it has been done on this occasion does not also result in the evidence being relevant.

CALLINAN J:   No, I am sorry, what is the other purpose?

MR ELLIS:   It is the same purpose, your Honour, but there are two different ways of achieving the same result.  If the result is to obtain an opinion from an expert, clearly one needs to know ‑ ‑ ‑

CALLINAN J:   So you say the purpose is to obtain an opinion from an expert?  Is that what you say the other purpose is?

MR ELLIS:   No, your Honour.  What I am saying – well, it is intertwined.

CALLINAN J:   Do you accept that under section 60 you have to identify another purpose?

MR ELLIS:   Yes.

CALLINAN J:   All right.  Would you please identify that other purpose for me?

MR ELLIS:   What I am saying, your Honour, is that the other purpose is to provide a basis upon which the jury assesses the evidence given by the expert.  I accept that another way of doing that in some cases, not in all cases, is to put hypothetical propositions to the expert and to ask him or her to give an expert opinion based on those hypotheses.

KIRBY J:   But can you see the danger of this interpretation?  It may be it is what the Act requires.  The danger is that the Crown may use experts to become a source of very damaging factual material which is simply an assertion that is then admitted as fact.

MR ELLIS:   Yes, your Honour, but there are protections.

McHUGH J:   The main protection is to object to the evidence in the first place.  I remember well when this sort of evidence started to come in in New South Wales and judges used to always say, “Well, yes, the expert can give the history on the understanding that you will prove all the facts in the statement”.  I suspect that caveat has tended to drop out over the years, particularly with trial by judge alone.

MR ELLIS:   Your Honour, one of the real problems that is perhaps perfectly demonstrated by Welsh is a problem from an accused’s point of view.  If an accused does not want to give evidence yet wishes to run diminished responsibility on a murder count, then under the old system, in fact, there was no evidence before the court of the basis upon which the expert had made the opinion.  So in that sense the opinion was useless, and unless the accused, himself, gave evidence, the opinion bore no weight.  This allows the accused ‑ ‑ ‑

CALLINAN J:   Yes, but Mr Basten accepts that there may be an exception in the case of a person where a defective mind, or a like case, is involved.  I might say I dealt fully with that myself in Melbourne’s Case.  It is a dissenting judgment, but what I said there does not turn upon that.  It is an entirely different situation.

MR ELLIS:   Your Honour, what I am saying is that there is one way – the purpose of this particular legislation was to simplify things.

CALLINAN J:   But it was not to enable hearsay evidence to get in unless there were some clear reason for it.

MR ELLIS:   But, your Honour, it specifically dealt with this problem.  It specifically said that the Australian Law Reform Commission specifically exampled the histories given to doctors as being something which this provision would allow to go in, in exactly the same way as it went in in this case.  The fact is, if this provision is to be interpreted, it makes it very difficult to have a set of rules which is going to result in any number of possible permutations in any given case as to how, or by what particular means, a piece of evidence becomes admissible.

CALLINAN J:   All you need do is follow the analysis of Justice Sperling in the Court of Criminal Appeal here.

MR ELLIS:   With respect, no, your Honour, because there is no basis for saying that any party has to adopt a particular way in which evidence is to be given, and yet in another case say, “Because we don’t want to have to force the accused to give evidence, it will be all right if we rely on the history in such a case”.  You have to have a principled approach in terms of these things and you protect abuses, or you protect against abuses, by section 135, which is an overall discretion to reject, in any event, or by section 136, which limits the use of the evidence and simply says you can only use it for the purpose in which it is, and that is to assess the expert evidence.

So those provisions are safeguard provisions.  The Act is well structured in terms of how it sets out what it intends to do.  When one looks at both the Australian Law Reform Commission and the Act itself, what it is seeking to do is fairly clear.  There are two issues being confused here, that is, firstly, what is the appropriate system by which these pieces of evidence are considered, as distinct from, on the other hand, looking at individual cases and deciding whether there is a second relevance.  I accept that in some cases there may not be second relevance.  In other cases it may be dubious, which would have the consequence under section 135 that it not be permitted.  In other cases it might have some prejudice which would flow from it which brings into operation section 136. 

So that by this Court interpreting it has, the Crown would submit, to date and how the Act intends it to be, all of the problems – there are problems.  The Australian Law Reform Commission acknowledged that there are potential problems.

CALLINAN J:   No other Act has come before the Court more than this one in the short time I have been on the Court.

MR ELLIS:   Yes, that is so, your Honour.  One would logically think that that would apply given that it was a sweeping change to the Evidence Act in the State of New South Wales and ACT ‑ ‑ ‑

KIRBY J:   And it is in daily use in thousands of cases.  It is probably the most used ‑ ‑ ‑

CALLINAN J:   Yes, but there was surprisingly few evidence appeals before this Act was enacted, to this Court.

MR ELLIS:   That is because the common law had been settled over about 100 years, whereas this Act attempted to, not quite codify, but in essence codify the common law, but to change it.  It was not just codifying it, it was changing it, and then that implementation of change was the result of many appeals.  That was probably always going to be the situation.  But the fact is the intent of Parliament is clear when one has a look, that there is an acceptance that there are areas of potential problem but those areas are provided for in the sense that you have the provisions to reject the evidence, you have the provisions to limit the evidence, and then you have the provision to give a specific warning in terms of the reliability of the evidence.

In this particular case especially, there is absolutely no prejudice whatsoever.  This young lady had made a complaint.  The jury were well aware of the complaint.  They knew, for instance, that she had made a statement to the police in May.  The offence was towards the end of April, a statement made in May and saw the doctor in June.  There was evidence of that statement to the police.  I mean, the only inference available from the fact that a girl made a statement to the police and that this man was before the court being charged was that in that statement she had made the allegations that were before the court.  There was no challenge to the fact that she had complained to the lady, Rhonda.  Whilst Rhonda did not give evidence, the mother gave evidence saying – or giving evidence that she had been told by Rhonda of the complaint.  So it was clear that that complaint was before the jury, so there was no prejudice.

CALLINAN J:   There is a problem about Rhonda.  Rhonda could have been subpoenaed by the Crown to give evidence, but was not.  Is that not right?

MR ELLIS:   Rhonda, I am not sure whether she was or was not subpoenaed, but she certainly could have been subpoenaed.  She refused to co‑operate, as I understand it.  I am not 100 per cent sure of the precise details about why she was not there, but it was clear – the mother gave evidence about that.  It was a factor that the jury could take into account.  But it was never suggested to the complainant that she had not complained to Rhonda.  It was clear that she had because the mother found out about this and took the matter to the police and, in fact, took it to her doctor, to Dr Norrie, on an earlier occasion.  She saw the doctor twice.  The first time the doctor was unable, by reason of some hygiene matters, apparently, to make clear observations, but went back then the second time. 

So it was clear, at least inferentially, that the girl had complained on that day.  The mother found out.  She gave evidence about this, that she had a telephone conversation, I think that day or the day after, with the lady, Rhonda.

CALLINAN J:   Double hearsay.

MR ELLIS:   The fact that she had a telephone conversation was not hearsay.  That was just a fact of a conversation, your Honour.  But it was clear that the material was before the jury.  The complainant herself gave evidence of that complaint.  So in that sense, even though there were provisions which would have allowed the court to determine to either reject the evidence, or to limit the evidence, or to give warnings about the evidence, in this particular case no particular prejudice flowed.  The main point the Crown makes is that, whether or not the Court likes it, whether or not lawyers like it, the Act has intended to change the common law.  The Act has intended to bring about certain specific changes by reason of the inclusion of section 60 and section 77.

When one looks at the structure of the Act, when one looks at the way in which the Australian Law Reform Commission has dealt with it, the way in which this Court has dealt with sections 59 through to 66 to date, there is only one way to interpret it, and that is the way in which it has been interpreted in Welsh.  Welsh has been accepted in this jurisdiction.  It has been accepted in the federal jurisdiction by the Federal Court.  There is no clash between any of the principles enunciated in Welsh and those enunciated by this Court.  In fact, some of the obiter comments made by Justice Hunt have subsequently been confirmed by this Court’s decisions in Papakosmas and, indeed, Graham to a lesser extent.

So that the Crown says there is no need when there is a clear structure within the Act, there is a clear structure of interpretation outlined by this Court already on a number of occasions, and that there is, in fact, no inconsistencies within the jurisdiction or between jurisdictions in relation to Welsh, and the Crown says that, on that basis, there is no special leave point and, indeed, in this particular case there was no prejudice and there, realistically, would be no prospect of success for this appeal.  Contrary to what Justice Sperling said, the Crown would submit that the fact that this evidence went in, even had it not gone in, or if there was a ruling that it should not have gone in by this Court, it did not produce any prejudice.  It did not take away from the accused any opportunity for acquittal.  It added nothing to the proceedings by way of evidence that was not already before the court.  The Crown submits that, in fact, there is no basis for a special leave.

In terms of the last direction point that my learned friend made, that was done on a Friday.  The jury did not come back until the following Monday, when they listened for about an hour and a half to transcript, or to the tapes of the evidence.  So it was not necessarily that it was something that was ringing in their mind.  It was said among a number of different redirections.  One of the directions that, in fact, was given was given at, I think, page 14 of the application book where his Honour directed the jury, at line 41:

Dr Norrie cannot say who did it, all she can is ‘I have examined a child here who has given me a history of things happening to her.  Having looked at the child I am satisfied that what I saw is consistent with what she has told me.’

So that there was no misuse because the main point in this trial was not that she had not, in fact, been interfered with or anally penetrated – there was little raised about that – it was whether it was this accused who had done it.  They are my submissions, thank you, your Honours.

McHUGH J:   Yes, Mr Basten.

MR BASTEN:   Firstly, in response ‑ ‑ ‑

KIRBY J:   What do you say is the significance of the evidence in this particular trial?  I realise this is the proviso point but it does appear to have, really, been a relative minor aspect of what was a whole series of complaints.

MR BASTEN:   Your Honour, that is hard to deal with without having all the material before your Honours.

KIRBY J:   What is your general answer?

MR BASTEN:   The general answer is that that is simply not so.  If you go to the evidence of what she says about the complaint to Rhonda, it is pretty empty of content.  The point about the complaint to the doctor – and it was objected to, funnily enough, as complaint evidence originally, presumably because it identifies the present applicant as the person who did things, and that is ‑ ‑ ‑

KIRBY J:   He had a theory that it was another boyfriend of the mother, did he not?

MR BASTEN:   Yes.

CALLINAN J:   The natural father, was it not?

MR BASTEN:   The natural father of the child.  That was the only other evidence of complaint.  There was no suggestion that the statement to the police was a complaint or that it had any particular content.  I mean, that is simply not part of the evidence.

KIRBY J:   Is your point that by the time it got to the doctor, the specificity particularity of the complaint had been firmed up, and that that was the damage that was done by the complaint by that stage ‑ ‑ ‑

MR BASTEN:   Yes, it was a history ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ if it is admitted as evidence of the fact?

MR BASTEN:   Yes, and there was some question about how much of the history was given by the girl and how much by the mother herself, who was present during the interview with the doctor.  I am not suggesting that this particular aspect was provided by the mother, but some of it was, and the doctor was uncertain about some of it.

Your Honour, might I quickly say two things.  Firstly, in relation to my friend’s suggestion that Welsh has been approved and Papakosmas and Graham, I just do not think that that is correct.  It was Lee in which it was not referred to by this Court but was dealt with in argument and the passage which I took your Honours to appears.  Going back to your Honour Justice Kirby’s question.  At page 21 of the bundle in Papakosmas, at paragraph 33 in the joint judgment of the Chief Justice and Justice Hayne, their Honours are dealing with the effect of section 55(2) about:

evidence is not to be taken as irrelevant only because it relates to credibility –

that appears at paragraph 32, about halfway down the page.  Then at paragraph 33, their Honours say this:

The Act has changed that.  Such evidence, if relevant, may now be used for a hearsay purpose if it falls within an exception to the exclusionary rule ‑ ‑ ‑

KIRBY J:   Yes, but Mr Ellis’ argument, as I understand it, is that relevance is the first gateway.  You have to consider that at that stage, not subsequently down the track, as you are seeking to suggest.

MR BASTEN:   I am not sure that that is what their Honours are saying there, but my point was simply going to be this, that what your Honour and Justice Gaudron says is, at least, not contradicted by anything in the Chief Justice and Justice Hayne’s judgment and we would think that if one reads that as a whole – and it is a lengthy passage which really begins at paragraph 23, where they deal with relevance separately from the various exclusionary rules, it is at least consistent with what your Honours suggest.  I do apologise, I do not have enough of your Honour Justice McHugh’s judgment to know if you dealt with that aspect of the matter.  There is no reason why it should have been dealt with in the context of section 55(2).

The second point of it raised by my learned friend was a reference to section 95 of the Act.  Of course there are provisions which deal with the extent to which evidence admitted by way of other rules, that part relates to tendency and coincidence, has nothing to do with hearsay, can be dealt with, but really that does not affect our proposition in this case.

CALLINAN J:   Mr Basten, what do you say about the respondent’s characterisation of the other purpose under section 60?

MR BASTEN:   Your Honour, we say that the other purpose is not itself a purpose which involves any relevant use of this material.  The material was not relevant to the appropriate purpose for which it was originally introduced and, therefore, there is no other purpose for the purposes of the trial.  Your Honours, those are my submissions.

McHUGH J:   The Court will adjourn to consider what course it will take in this matter.

AT 12.04 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.07 PM:

McHUGH J:   Although the Court is of the opinion that the points sought to be raised by the applicant are clearly arguable, and not precluded by any prior decisions of this Court, the Court is not persuaded that in the circumstances in this case there has been any miscarriage of justice by reason of the admission or use of the evidence.  In those circumstances, the application for special leave to appeal is refused.

The Court will now adjourn to reconstitute.

AT 12.08 PM THE MATTER WAS CONCLUDED