McPhillamy v The Queen

[2018] HCATrans 73

[2018] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S258 of 2017

B e t w e e n -

RICHARD JOHN McPHILLAMY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 APRIL 2018, AT 9.46 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR S.J. BUCHEN.  (instructed by Proctor & Associates)

MS K.N. SHEAD, SC:   May it please the Court, I appear for the respondent with my learned friend, MS B.K. BAKER.  (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, we seek an extension of time in this matter.

KIEFEL CJ:   Is there any objection?

MS SHEAD:   There is no objection.

KIEFEL CJ:   Yes, you have that extension.

MR ODGERS:   Thank you, your Honour.  Your Honours, this application raises again the issue of the admissibility of tendency evidence under the uniform evidence law, but we have drawn particular attention to section 101(2) which has not been a subject of a judgment of this Court.

KIEFEL CJ:   The most recent decision in Hughes did not go into this section?

MR ODGERS:   That is correct.

KIEFEL CJ:   That is really your point?

MR ODGERS:   I will come to 101(2) in a moment but before I do, your Honours, we do contend that the majority of the court was wrong to hold that the tendency evidence in this case had significant probative value.  Not surprisingly, we rely heavily on the detailed judgment of Justice Meagher.  We say his analysis was entirely consistent with Hughes.

EDELMAN J:   Just before you get into that, is the prism through which we are looking at that issue the question of whether there is a miscarriage of justice or whether there is a substantial miscarriage of justice?  In other words, is your submission that the absence of reasons necessarily means there was a miscarriage of justice so that this issue only gets considered at the proviso stage?

MR ODGERS:   We certainly argued that below.  Justice Meagher did not feel it necessary to go to that stage because he considered that ground 2 should be upheld, there was a miscarriage of justice, and clearly he thought that it was not a case for the application of the proviso.  We put our argument in different ways below.  We will put it in different ways in the Court if we are granted leave. 

Certainly we would say the absence of reasons, both at trial and in the Court of Criminal Appeal - but that is not relevant to your Honour’s question, I appreciate that – but the absence of reasons means that ultimately it was a question of substantial miscarriage.  I think that is right.

But ultimately the question turned on admissibility.  Was the evidence admissible?  Justice Meagher held it was not.  It did not get through 97.  Even if it had got through 97, it would not have got through 101(2).  The majority disagreed.  We are content to focus on that as being the basis for an application for special leave.

GORDON J:   Did you take the point below about the content of the direction on this question?  I notice Justice Meagher said he did not think that there was – at paragraph 16 – the need for them to be continued in existence at the time of the offence.

MR ODGERS:   No, we did not take below an argument that the directions were inadequate, and we do not take it now.  Returning to 97, if I could, the significant probative value point, we say that the evidence in this case clearly lacked significant probative value and I want to make two points, because I appreciate that this Court has discussed this issue in Hughes.  The two points I wish to emphasise – can I take your Honours to page 145 in the application book?  The tendency was expressed at a high generality.  At the top of the page:

tendency to be sexually interested in male children in their early teenage years and to have acted upon that interest with such children.

On any view of it, that is a tendency expressed at a high level of generality and no doubt it was expressed in that way because of the differences in the circumstances of the alleged offending.  Justice Meagher held it was too general to have significant probative value.

KIEFEL CJ:   Is the gap in time relevant to the tendency to act upon the interest?

MR ODGERS:   Yes, and I will come to that in a moment.  That is going to be the second point I make, if I could just leave that for the moment, your Honour.  In terms of the generality point, the majority responded to Justice Meagher’s view that it was too general in paragraph 128 on 146 where their Honours said:

Nor to the same effect do we consider there to be a disqualifying level of generality –

That was Justice Meagher’s view.  I will not read out that paragraph but in the last sentence in that paragraph:

In our opinion the appellant’s earlier conduct could be regarded by the jury as strongly supporting the proposition advanced by the Crown.

We understand that is to be saying notwithstanding the generality, the tendency could be regarded by the jury as strongly supporting commission of the charged conduct.  Now, to support this analysis, the Crown has relied on a passage from Hughes.  If your Honours go to the application book at 171 you will see a passage extracted at paragraph 17, a passage which reads:

“Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has . . . fabricated his account has been excluded” -

The Crown is contending that that supports the proposition that general tendency does have significant probative value.  Indeed, in my experience Crown Prosecutors are regularly using that passage to support the proposition that in child sex abuse cases, simply showing that there is a sexual interest in children which has been acted on in the past is enough for significant probative value.

But we do not read the judgment of the plurality in Hughes as supporting that proposition.  Saying that a general disposition to commit sexual offences against children is likely to be influential is not to be taken to mean that it would have significant probative value.  More is required, and that was conveyed at other parts of the plurality’s judgment where the plurality stated that more is required for significant probative value than proof of a disposition to commit crimes of the kind in question.

EDELMAN J:   There is also the point at paragraph 64 about the higher the level of the generality, the less significant the relevance.

MR ODGERS:   I was going to read that but I will not now, your Honour, yes, exactly.  So we contend that the majority judgment at 146 simply failed to appreciate that point in paragraph 128.  Now, the second point your Honour the Chief Justice raised with me is this issue of the gap.  Justice Meagher pointed out that while the 1985 conduct manifested a sexual interest in young boys, there was a 10–year gap and there was no evidentiary basis to infer that the applicant was prepared to act on that interest when the opportunity arose.  The majority responded to that point at paragraph 129 on 146.  The majority responded by stating at line 50 that there is nothing - it:

does not seem to us to be particularly controversial for a jury to be asked to infer that a sexual interest in young teenage boys would be unlikely to become attenuated in the space of ten years.

The tendency that was relied on was a tendency to act upon the interest.

GORDON J:   That comes back to the point I think you rejected that I put to you before about the enduring nature question.

MR ODGERS:   I am sorry, then I misunderstood the question, your Honour.  I do apologise.  I thought your Honour was raising a question for me about the directions to the jury.

GORDON J:   Well, that is where it starts.  I thought Justice Meagher’s point was there was no direction to that effect.

MR ODGERS:   Yes.

GORDON J:   So if it is directed at the enduring nature of the ‑ ‑ ‑

MR ODGERS:   Yes, your Honour, we do not - did not seek a grant of appeal if the jury were not properly directed.  We do rely on what Justice Meagher says and we say it is correct that there was a problem here in inferring a tendency to act over a period of 10 years leading up to the time of the commission of the alleged offences.

KIEFEL CJ:   These are always difficult questions because it is a question of whether the opportunity arises too.

MR ODGERS:   Yes, but there was an opportunity to engage in sexual activity with children when alone with them and it is hard to imagine that over a 10‑year period there would not be such an opportunity, but I hear what your Honour the Chief Justice says.

EDELMAN J:   Are you making that submission in relation to significant probative value or are you making it in relation to section 101, prejudicial effect?

MR ODGERS:   That was the last thing I was going to say about 97.  Of course, everything that I say about probative value in 97 feeds into 101 because 101 requires an assessment of probative value so our position is that even if this Court were of the view that the evidence did have significant probative value and got through the 97 threshold, you would still have to assess its probative value for the purposes of the 101 exercise.

EDELMAN J:   You would also have to assess how significant the probative value is.

MR ODGERS:   Exactly, exactly.  As we put in our written submissions, we say, relying on Justice Meagher and on our submissions, that even if you could say it is significant it could be regarded as significant by a jury, it was not high, for all the circumstances and that balanced against the real dangers there was a strong case for saying that it was not sufficiently high to substantially outweigh those dangers.

KIEFEL CJ:   That is your strongest ground for special leave is ground 3, is it not?

MR ODGERS:   We accept that it is, yes.

KIEFEL CJ:   Because the point of construction it raises and the fact that this Court has not really dealt with it.

MR ODGERS:   We conceded that as much in our written submissions but I do not want to abandon the 97 point, your Honours and I do want to stress – the last thing I will say about it is that the problem – it raises a question of general importance about the general tendencies and reliance on a passage in Hughes by the prosecutors to support admissibility of such evidence as getting through the 97 threshold where we say that just cannot be right and that it needs to be made clear that – and this case really raises it perfectly because it was of such a high level of generality we say it could never have got through the 97 threshold properly understood.

KIEFEL CJ:   Do you say that if ground 3 is the area where the Court has not yet spoken that it is nevertheless necessary to determine whether the threshold section 97 is reached in relation to it or were they quite separate distinct areas?

MR ODGERS:   Your Honour, you would have to assess probative value for the purpose of 101.  It would seem appropriate, we would say, in those circumstances to begin with a question of whether or not it has significance and then to move on to the 101 exercise, but that is the highest I can put that point.

EDELMAN J:   What about ground 2?  Where does ground 2 go – I mean even if you are right about ground 2, does that go anywhere further than to send the matter back to the Court of Criminal Appeal, just to get more reasons?

MR ODGERS:   We have not placed a lot of weight on the absence of reasons point.  It was more, I think, an argument that we were saying in the interests of justice in this case it was unjust that the applicant was confronted by a situation where he had a trial judge who has not given reasons for letting the evidence in and we say the majority of the Court of Criminal Appeal has not given reasons for letting the evidence in and, in those circumstances, that is just not justice.

EDELMAN J:   But this is a ground that only focuses on the Court of Criminal Appeal, it is not an AK type argument that the complete absence of reasons meant there was a substantial miscarriage of justice.

MR ODGERS:   No, I accept that.  Can I move on then briefly to 101(2), not briefly but we say it is clear that the majority failed to give any reasons for holding that the requirements of that provision were met.  It was dealt with very briefly at paragraph 130 in the judgment on page 146.  Your Honours will have read that.  There is a reference to the reasons provided by Justice Meagher at 121.  Those were reasons his Honour gave why there were not additional matters of creating a risk of prejudice that went beyond, I am quoting from Justice Meagher, the prejudice that it is accepted was likely to arise in any event. 

His Honour had discussed that at paragraph 82 of his judgment and, no doubt, it was those matters which his Honour took into account when his Honour Justice Meagher ruled that the 101(2) evidence did not meet the 101(2) test and that the probative value of the evidence was substantially – was not substantially outweighed by the prejudicial effect it might have. 

Now, the majority said nothing about those dangers of prejudice.  It did not refer to the danger of tendency evidence being given disproportionate weight.  In this case, the danger was the jury would too readily infer that the applicant had acted on his sexual interest despite the 10‑year gap, the danger of being emotionally affected by the evidence that they had simply disregard the applicant’s denial and the complainant’s admission that he had initially lied about the nature of the abuse, the danger that the jury would be disinclined to give the applicant the benefit of the reasonable doubt which might arise from the various matters that undermined the credibility of the complainant, the danger that they might want to punish him for uncharged conduct that they consider he must have engaged in even if he did not commit the offences charged. 

So, we say it follows the majority has given no reasons as to why the requirements of 101(2) were satisfied.  We submit it could not be said this is a case where the only reasonable view is that 101(2) was satisfied.  We rely on Justice Meagher for the proposition that even if the probative value was significant it was not high and that there were obvious prejudicial effects that the evidence may have – that is the language of 101, even taking into account the directions that were given in an attempt to minimise those dangers of prejudice.

EDELMAN J:   If that submission were ultimately accepted, what would be the consequence of it?  I appreciate your submission is that it would mean that your client has not received any reasons either at trial or on appeal in relation to section 101(2).  Would that mean that a new trial should be had or would it mean that this Court could supply the reasons that had not been supplied, on your submission, at trial or on appeal or would it mean that the matter would need to get sent back to either the trial judge or the intermediate court to supply those reasons?

MR ODGERS:   Your Honour, I regret I have not finally resolved what submission I would make but we put it alternatively.  We would put it would not be appropriate for the court to determine it for itself and it should be sent back to determine that question.  Alternatively, if the court is in a position to do so, we would say that you would and that the court would conclude that the test was not met.  That would be how we would no doubt advance it in Canberra if we were granted special leave.

At the very least, the court would have the opportunity to clarify what 101(2) required and the principles that applied and in the context of this case, even though it might not itself proceed to determine the ultimate question of admissibility under that provision.  We say that the proper approach to 101(2) is a question of general importance, given that it is the critical provision in the uniform evidence law that addresses the risk that admission of tendency evidence may work unfairness to the accused.

EDELMAN J:   Sorry, I do not quite understand that answer.  If you were to argue ground 1 and ground 3, are you saying that this Court would not make a determination of admissibility in relation to ground 1 and ground 3 but would somehow send the whole issue back on ground 2?

MR ODGERS:   Your Honour, my understanding of the case law and the decisions of the Court is that where the decision has not been made, where it has not been properly made, then it may be appropriate to have it sent back to determine.  That would mean order a new trial and have a trial judge determine the question of admissibility at a new trial on the basis that it could not be said that it would inevitably be admitted.  That would be one approach.  The alternative approach, and we do not contend strongly one or

the other, is that the Court would itself determine the question of admissibility under 101(2).

EDELMAN J:   Which is exactly what you are asking for in grounds 1 and 3.

MR ODGERS:   I may be, your Honour.  I had not closely focused upon what we are asking for.  We have contended that there was an error in holding that probative value outweighed prejudicial effect.  I guess the consequence of that is if there was an error that means that it was not admissible and you would order a new trial on that basis.  The court would itself hold that it was not admissible, that is correct, your Honour, yes.

Your Honours, as I say, we do submit it is a question of general importance.  This is a suitable vehicle to address the proper approach to 101(2) and on that basis we submit that there should be a grant of special leave to appeal.

KIEFEL CJ:   Thank you, Mr Odgers.  Yes, Ms Shead.

MS SHEAD:   Your Honours, in our submission the trial judge and the Court of Criminal Appeal did not err in finding that the probative value of the evidence substantially outweighed any prejudicial effect it may have had on the applicant.  There is no issue of general importance in this respect, in our submission.

KIEFEL CJ:   Except that the circumstances of the facts of this case do point out the operation of section 101(2), do they not?

MS SHEAD:   They do, your Honour, but the prejudice that was pointed to and the possible forms of prejudice here are well recognised.  They were dealt with by this Court in Hughes.

KIEFEL CJ:   It is more a question, though, of how the Court approaches the weighing of it and the directions that should be given.

MS SHEAD:   Yes, your Honour.

KIEFEL CJ:   And the probative value of the evidence, what height that has to reach to tip the balance sufficiently.

MS SHEAD:   In our submission, your Honour the Chief Justice, we point to the fact that for these types of cases the particular facts of each of them will be determinative in terms of that balancing exercise, as will proof ‑ ‑ ‑

KIEFEL CJ:   That was the point made by Chief Justice Spigelman in Ellis, I think.

MS SHEAD:   Yes, that is so, your Honour, such that where the court is undertaking that open textured evaluative task that they are called upon to do, the guidance that this Court can give having illustrated and explained the common forms of prejudice that need to be taken into the balance, and ‑ ‑ ‑

KIEFEL CJ:   You are saying that no general principle can be stated.  Do you go that far?

MS SHEAD:   What we say, your Honour, is that the text itself is plainly stated and that having a judicial gloss in relation to the word “substantial”, for example, perhaps may not assist, given the wide variety of factual scenarios where tendency evidence ‑ ‑ ‑

KIEFEL CJ:   But in the area of criminal law, the way in which this Court usually gives guidance is in relation to the application of a provision to particular facts and trial judges take from that what they can.  It is not always possible to state general principles for the very reasons that you point out.  But that is not to say that the Court cannot sometimes give guidance by identifying with respect to particular factual scenarios how a provision is intended to operate and in the course of that make significant observations.

MS SHEAD:   Yes, that is accepted.  Your Honour, here the parties are essentially agreed in relation to what the prejudicial effect is, although before the Court of Criminal Appeal the applicant asserted four areas of what he termed to be acute prejudice that went beyond the acceptable level of prejudice, which was the categorisation of the prejudice this Court identified in Hughes.  Those acute areas of prejudice are apparently abandoned on this application.  So the Court would be dealing with ‑ ‑ ‑

KIEFEL CJ:   The focus would then be on the probative value of the evidence.

MS SHEAD:   That is so, your Honour, yes.

KIEFEL CJ:   And there that draws in what was said by Chief Justice Spigelman in Ellis where special leave was revoked.  So this Court did not get to say any more than that what his Honour said appears to be correct.

MS SHEAD:   That is so, your Honour, but guidance in relation to the concept of probative value was given by this Court, we say, in Hughes, because although in dealing with section 97 and the phrase “significant probative value”, those concepts are readily able to be considered when one looks at the balancing test in the second stage of consideration of tendency evidence.  If there is a settled approach to what the common forms of prejudice are and guidance on what the probative value is and how that may be assessed, then given the evaluative task that is undertaken ‑ ‑ ‑

KIEFEL CJ:   All that is left is to determine what “significant” means.

MS SHEAD:   Yes, and we say this a plain word that is readily understood – or substantially, I am reminded, your Honour.

KIEFEL CJ:   Quite so.  I am reminded as well.

MS SHEAD:   Could I turn to ground 1 and, in our submission, the tendency evidence here did have significant probative value because of the facts in issue in the case which were that the complainant had fabricated the allegations because he wanted money from the church.  The tendency evidence was highly probative as to this because it was evidence from two other prepubescent boys of around the same age, where the applicant was the assistant house master at their school and the acts included fondling and also an attempt at fellatio.

It was relied upon to demonstrate that the applicant had a tendency as an adult man to have a sexual interest in prepubescent boys that he was supervising and then to act on that interest in circumstances that involved a not insignificant risk of discovery.

EDELMAN J:   Do you accept Mr Odgers’ proposition that that tendency is expressed at a high level of generality?

MS SHEAD:   No, we do not, your Honour.  We submit that this evidence was specific in terms of the facts in issue in this case.  It was not a general tendency because to have a sexual interest in prepubescent boys under one’s supervision and then to be prepared to act on that with respect to more than one complainant on more than one occasion is unusual behaviour that the jury, as a matter of common experience and logic, could find influential in their determination of whether or not that tendency existed and then whether or not that tendency could support the charged offences as the Crown contended.

We say also that the conduct occurring as it did in private spaces to which people had some access that there was a risk of discovery and this occurred in two ways.  There was an absence of any grooming of any of the complainants.  The applicant immediately began overt sexual behaviour.  That carried with it a significant risk of immediate complaint or allowed requests for assistance or help and also both places, his bedroom at the boarding house where other students who were ill or ‑ ‑ ‑

KIEFEL CJ:   This is not a pattern of risky behaviour, though, is it?  You are not relying upon that.

MS SHEAD:   It has an aspect to that, your Honour, that there was some ‑ ‑ ‑

KIEFEL CJ:   It is rather removed from Hughes.

MS SHEAD:   It is different to Hughes but it has a flavour of that.

GORDON J:   Do you not have a problem with the 10‑year gap to make that submission?

MS SHEAD:   Your Honour, we say the 10‑year gap needs to be assessed in terms of the tendency itself.

GORDON J:   I think that is where the difficulty comes.  You have this high level of generality of the tendency and the higher it is in a sense the more years it gives rise to supporting a tendency in that way.  They are the difficulties.

MS SHEAD:   Your Honour, as the Chief Justice observed, it does depend to a degree on opportunity within that intervening period and we say additionally it needs to be assessed in light of the level of maturity of the applicant.  He was 24 at the time of first offending and 34 at the time of the charged offences and he was sexually mature during both of those instances and there was no intervening treatment, for example, that may have been thought to change the quality of his state of mind and his preparedness to act on it.

In our submission, the Court of Criminal Appeal was correct to find that the tendency evidence had the capacity for the jury to find that it was enduring and that they would bring their collective wisdom and common sense to that task, and as the Court of Criminal Appeal observed, the majority did but it was not controversial for the jury to be asked to assess that.  We say that finding was open to the jury and, properly directed, they could determine for themselves whether or not that tendency existed and that the evidence had that capacity.

Turning next to ground 3, I have outlined what in our submission the significant probative value was.  To summarise, it was not general because it demonstrated that the applicant had a sexual interest in prepubescent boys and that he was prepared to act on that interest on more than one occasion with respect to more than one child in circumstances that involved his supervision and not an insignificant risk of detection.  That was highly probative given the primary issue in the trial in relation to whether or not the complainant had fabricated the allegation.

EDELMAN J:   Were those four matters of significance that you have mentioned ‑ prepubescent boys, acting upon that interest, more than one occasion and more than one child – all matters upon which the tendency was put before the trial judge?

MS SHEAD:   The way the tendency developed before the trial, your Honour, was the tendency notice detailed fairly discrete areas and as the trial progressed the Crown expressed the tendency, in its closing address in any event, in the way that the prepubescent boys were relied upon, more than one complainant on more than one occasion, and the supervisory aspect ‑ ‑ ‑

EDELMAN J:   But it is the ruling of the trial judge itself that is in issue.  One of the difficulties is we do not know the basis for that ruling but what was put before that ruling by the prosecution?  Were all of those four matters put?

MS SHEAD:   Yes, your Honour, they were.  The tendency notice itself was more detailed.  That was before the trial judge in making the ruling but in oral submissions the way the Crown articulated its reliance upon the tendencies and in, I believe, the same way that I have articulated before this Court.

The four possible prejudices that were identified by this Court in Hughes – that is, the jury failing to allow that a person who has a tendency to have a particular state of mind or act in a particular way may not have had that state of mind or acted on the occasion in issue; the jury underestimating the number of persons who might have the tendency or share that tendency; the risk that the tendency evidence will emotionally cloud the jury’s consideration of the facts in issue; and the risk that the prejudice may require the accused to answer a raft of uncharged allegations.

We summarise those four propositions as perhaps disproportionate weight and a risk that the jury’s attention is distracted from the issues in the trial and, as I submitted, although in the CCA the applicant submitted the four acute prejudices were present, they are not relied upon here. 

The fact that the tendency evidence in this trial was undisputed significantly lessened the risk, in our submission, that the tendency evidence would assume undue importance in this trial.  The evidence, that is, occupied a relatively small proportion of the trial and it lessened the risk that the jury would be emotionally swayed by the tendency evidence because of the absence of cross‑examination of the tendency witnesses and the emotional character of the tendency evidence would have been vastly less than that of the evidence of the complainant.

It must also be borne in mind that the tendency direction was given both at the time of the giving of the tendency evidence.  So the jury had that warning in their minds and again, at the time of the summing‑up there had been no complaint about the directions in this trial.

It is well established that directions will ameliorate any possible prejudice that the tendency evidence might have and the applicant accepts on this application that these directions meant that the jury would not seek to punish the applicant for what he had done to the two tendency witnesses.

We submit that the emotional effect of the evidence was lessened in circumstances where the evidence was undisputed and the emotional character of the allegations was no higher than the emotional aspect of the charged acts – that is, the charged acts and the tendency acts were the same, not of greater seriousness.

We accept that there may be a risk of cognitive bias and that the jury may fail to allow that a person who has a tendency may not have acted in that way on another occasion, or a risk that the jury may underestimate the number of persons who share that tendency, but that risk is lessened, we say - erroneous reasoning is much less likely where identity is not in issue and where the tendency evidence encompassed more than one complainant on one other occasion.

Section 101, in our submission, admits that there will always remain a risk of prejudice in respect of tendency evidence and the question is whether the probative value of that evidence substantially outweighs its prejudicial effect and in our submission the Court of Criminal Appeal correctly held that the probative value of the tendency evidence, which was very high, substantially outweighed its prejudicial effect.

Moving to ground 2, the majority of the Court of Criminal Appeal held that the applicant’s submissions in relation to section 101 could not be accepted for the reasons provided by his Honour ‑ ‑ ‑

KIEFEL CJ:   Ms Shead, we do not need to hear from you in relation to ground 2.

MS SHEAD:   Those are our submissions.

KIEFEL CJ:   Mr Odgers, your reply?

MR ODGERS:   Just in respect of 101(2), it is true that the Crown accepts that there are various kinds of prejudice, but in this case they needed to be assessed.  They needed to be assessed in the circumstances of the case.  They needed to be balanced, so to speak, against the level of probative value.  It needed to be taken into account whether the probative value substantially outweighed the risk of prejudice. 

None of that happened in the majority’s judgment, so we say that the proper analysis is that the court did not address the issue properly and there is a real question in the circumstances of this case whether the probative value of the evidence did substantially outweigh the danger of prejudice.  We do not abandon the acute dangers that were advanced in the Court of Criminal Appeal; we just have not focused our attention on them.

We do submit that there should be a grant of leave in respect of 97.  The Crown sought to argue that there was not a high level of generality in this case, but the formulation really was at a high level - that was adopted by my friend was at a high level of generality.  It is essentially a disposition to commit crime of the kind charged, which is as general as you can really get. 

The concern that we contend justifies a grant of leave in respect of 97 is that there was that reliance on that idea that a jury is going to regard it as highly influential, as though that is enough ‑ an incantation relying on a passage from the plurality judgment in Hughes as a justification for letting the evidence in. 

If that idea is allowed to stand then there is a serious problem with justice in uniform evidence law jurisdictions and it illustrates a problem that exists since Hughes and which, given that the Court would have to, if leave were granted in respect of 101(2), would have to assess probative value, we say it should not be done in a situation where the court is essentially forced to assume that the evidence has significant probative value.  That would be unduly constraining this Court’s consideration of the issue for 101(2) purposes.  It should be allowed, we respectfully submit, to consider the 97 question as a preliminary step prior to moving to 101(2).  I do not think I can say anything more, your Honours, thank you.

KIEFEL CJ:   Thank you, Mr Odgers.  The Court will adjourn to consider the course it will take.

AT 10.21 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.24 AM:

KIEFEL CJ:   There will be a grant of special leave in this matter limited to grounds 1 and 3.  What is your estimate of time, Mr Odgers.

MR ODGERS:   Half a day, your Honour.

KIEFEL CJ:   Would you agree with that, Ms Shead?

MS SHEAD:   We would submit half a day to a day, your Honour.

MR ODGERS:   I think that is actually more accurate, on reflection.

KIEFEL CJ:   All right, yes, thank you.  Would you please ensure that your instructing solicitors see the Deputy Registrar about the timetabling of steps.

MR ODGERS:   Certainly, your Honour.

KIEFEL CJ:   Thank you. 

AT 10:24 AM THE MATTER WAS CONCLUDED