R v Dennis Bauer (a pseudonym) (No 2)

[2018] HCATrans 111

[2018] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M1 of 2018

B e t w e e n -

THE QUEEN

Appellant

and

DENNIS BAUER (A PSEUDONYM) (NO 2)

Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 JUNE 2018, AT 10.22 AM

Copyright in the High Court of Australia

MR B.F. KISSANE, QC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the appellant.  (instructed by Solicitor of Public Prosecutions (Vic))

MS C.A. BOSTON:   May it please the Court, I appear with my learned friend, MR P.J. SMALLWOOD, on behalf of the respondent.  (instructed by Doogue + George)

KIEFEL CJ:   Yes, Mr Kissane.

MR KISSANE:  Your Honours will have received the appellant’s outline of oral argument. The first ground in relation to this appeal relates to the interpretation of section 381 of the Criminal Procedure Act (Vic), the relevant part of that section is set out in the Court of Appeal’s judgment at page 147 of the core appeal book.

What we say is that the Court below erred in its interpretation of section 381 and the error below that is complained of is the transposition of one of the relevant statutory factors from a consideration of willingness to give evidence and in effect elevating that to the necessity for the prosecution to establish an unwillingness to give evidence. If the Court looks at page 156 of the core appeal book, at line 20 and following, this is the area where ‑ ‑ ‑

KIEFEL CJ:   Which paragraph number is that, Mr Kissane?

MR KISSANE:   Paragraph number 42, your Honour, page 156, where the court said:

In our view, the prosecutor’s assertion from the Bar table that RC had a ‘preference’ not to give evidence could not satisfy the pre‑condition to admissibility found in s 381(1)(c). Furthermore, the judge was wrong to act on the prosecutor’s assertion from the Bar table. In the absence of any concession from the defence, a proper evidentiary basis was required to establish an absence of ‘willingness’ on the part of the complainant.

We say that it was not necessary for the prosecution to establish an absence of willingness. The test in section 381 is one of interests of justice and if one looks at section 381 what is said there is that:

The court may admit a recording of the evidence of the complainant if it is in the interests of justice to do so, having regard to –

. . . 

(c)the availability or willingness of the complainant to give further evidence -

Now, before the trial judge what occurred was that the learned prosecutor indicated to the trial judge that the complainant had a preference not to give evidence. That was referred to by the Court of Appeal but the evidence is also in the appellant’s book of further material at page 74 where the trial prosecutor indicated to the trial judge - in terms of discussing section 381(1)(c) her Honour said:

But she’s otherwise available.

Prosecutor:

She’s otherwise available.  She’s had counselling.  I can get some evidentiary material if I need to but if the court is prepared for the moment at least to take it from the prosecutor that I’ve conferred with her.  Her strong preference, based on advice from counsellors and others is to avoid giving evidence if at all possible.  That is her preference.

Now, it is accepted that that is not in the terms of willingness but it is an indication from the trial prosecutor that there is a strong preference of the complainant not to give evidence. 

That is then further discussed with defence counsel at page 79 of the applicant’s book of further material where her Honour, in discussions with defence counsel, says:

But the test isn’t as to whether there is going to be stress or trauma occasioned if viva voce evidence is required but a factor to take into account is their willingness to give evidence or not.

Defence counsel then responds:

Of course.  And that’s what I was saying, so it just needs to be balanced, Your Honour, because then of course the other consideration, Your Honour, which is of course is a significant – I won’t say the most significant but a significant consideration is that the accused receives a fair trial.  And that’s where we come back to the cross‑examination that was conducted in the previous trial –

So, what we say is that the court in considering this issue was faced with a statement by defence counsel of a preference not to give evidence.  Her Honour was required to consider whether it was in the interests of justice and when defence counsel came to deal with it, defence counsel did not there or at any stage, as I read the trial, then say to her Honour, “Well, we need to have evidence from the complainant about this matter”.  Defence counsel then moved on to the issue of the fairness of the cross‑examination which was in the previous trial and whether a fair trial could be had as a result of the cross‑examination that was recorded in the previous trial.  This brings me I think to 1.4.

KIEFEL CJ:   So the requirement of there being a fair trial has been seen as meeting the expression “in the interests of justice”, the overarching requirement.

MR KISSANE:   That was the argument that was run ‑ ‑ ‑

KIEFEL CJ:   Put by defence counsel.

MR KISSANE:   ‑ ‑ ‑ by defence counsel, that there could not be a fair trial if the recording of the evidence from the previous trial was used, so the court then, in our submission, dealt with it on that basis.  The ruling of the trial judge, which is in the appellant’s book of further materials at page 233, line 28, her Honour says:

The prosecutor advised that the complainant is available to give evidence but does not wish to do so on the advice of her counsellor with whom she has ongoing therapy.  The real question is whether the accused would be unfairly disadvantaged by the admission of the recording.

Then her Honour proceeds to record the argument put by senior counsel on behalf of the accused, the respondent:

Senior counsel, on his behalf, submitted two main reasons . . . It was submitted that on the first trial it was not put to RC that she was lying and allied to that submission it was submitted that with a retrial of a single complainant using evidence recorded on a multi‑complainant trail where tenancy ‑

I presume that means “tendency”:

had been relied on by the Prosecution as being cross‑admissible between all complainants.  The accused would be at an unfair disadvantage if the cross‑examination could not be undertaken afresh.

That was the first submission that her Honour understood defence counsel to be making.  The second submission was that there were a number of non‑responsive answers within inadmissible material and that was dealt with by way of editing.

Her Honour went on to find that there was very little editing required and that she was of the view that the accused would not be unfairly disadvantaged if the recorded evidence was tendered and so rejected the submission on behalf of defence counsel that it would be unfair to admit the evidence of the complainant from the first trial, bearing in mind that unfairness is one of the matters set out in section 381. In considering the interests of justice, which is the overriding point, the Court has to consider whether the accused would be unfairly disadvantaged by the admission of the recording.

So, what we say and what we submit is that the court at page 156 of the core appeal book where it gives its decision, having discussed what “willingness” means, then elevates one of the matters that her Honour had to have regard to to something that the prosecution has to establish and has to establish on a proper evidentiary basis, whereas we say that was not an issue that was agitated in the trial, and that albeit that the court did not proceed to come to a final view on that ground, we say that the court was wrong to elevate that requirement and that the ruling of the trial judge, which was directed towards the quality of the cross‑examination at the first trial and not towards the willingness or otherwise of the complainant to give evidence, ought not have been impeached on the basis of this ground.

It should be noted that the court below assessed the cross‑examination of the complainant as her Honour did and the court below found that the cross‑examination was performed appropriately and ‑ ‑ ‑

GORDON J:   It was more than that, was it not, it was “conspicuous competence”?

MR KISSANE:   “Conspicuous competence”, yes, your Honour, they were the words that I was trying to drag up, but they were the words that the court below found, and so even if we are wrong about our analysis in relation to this ground we say that where really the matter turned on the interests of justice, where the cross‑examination was conducted in the way described by the court below, there we would submit, was no substantial miscarriage of justice in relation to this ground, albeit that the court below having found the error that they say was there did not proceed to make a finding about whether they would have ordered a retrial on this ground alone.

So, that is, in our submission, really the argument in a nutshell in relation to ground 1. We say that the court was in error in finding when it was not an issue that there needed to be a proper evidentiary basis to establish an absence of willingness and that the indication to the trial judge by the prosecutor of the complainant’s preference not to give evidence and the reasons that underscored that preference were sufficient to meet the matter set out in section 381(1)(c) which, we say, in any event, is not a precondition to admissibility but simply as the court below said but simply something that needs to be taken into account in assessing the interests of justice.

Now, that brings us to ground 2 which is the ground relating to tendency which, as we indicated in the leave application, was the ground – the reason why we are in this Court.  We say that the Court of Appeal erred in its treatment of tendency in what was a single complainant case.  So, this ground raises the issue of tendency in a single complainant case and it raises the issue of the cross‑admissibility of evidence across charges in relation to an indictment where there were 18 charges on the indictment.  We say that the Court of Appeal erred and before I turn to my outline, if I could just indicate in relation to the Court of Appeal judgment at page 179 of the core appeal book the Court of Appeal, having dealt with the evidence ‑ ‑ ‑

KIEFEL CJ:   Which paragraph number is that, Mr Kissane?

MR KISSANE:   Sorry, your Honour, paragraph number 80.

KIEFEL CJ:   Thank you.

MR KISSANE:   The court makes the finding that in relation to RC there was no such additional feature.  Now, this is having traversed the areas of this Court’s decision in Hughes, having traversed this Court’s decision in IMM, the court goes on to find that:

No such additional feature was relied upon by the prosecution in the present case.

And at paragraph 82 that:

Furthermore, TB’s evidence [also] lacked any special feature.

What we say is that the court erred in its treatment there of both RC’s evidence and TB’s evidence.  We submit that the rulings of the trial judge were correct in the employment of the way in which the judge ruled that tendency reasoning could be employed in this case and that ruling is found in the applicant’s book of further materials.  It is ruling number 1, and in that ruling ‑ ‑ ‑

BELL J:   What page in the book of further materials?

MR KISSANE:   Yes, your Honour, ruling number 1 starts at page 233 of the book of further materials.  Sorry, I am in error.  It is ruling number 2.  I have moved back to the first ground.  Ruling number 2 starts at page 238 of the book of further materials.  Her Honour sets out at line 20 ‑ first of all, her Honour deals with the tendency notice starting from line 12 ‑ line 11 of that ruling and the way in which the prosecution put the tendency evidence in this case which was that the respondent was alleged to have a sexual interest in his foster daughter, RC, and a willingness to act on that interest. 

Then it was noted in the tendency notice that each act of sexual misconduct and each uncharged act is relied on to show the tendency and to render it more probable that the accused committed the acts charged and the charges are submitted to be cross‑admissible with each act – with each uncharged act submitted to be admissible in proof of each charge. 

Her Honour then at line 25 sets out the evidence that was actually relied on by the prosecution as evidence showing that the respondent had a sexual interest in his foster daughter and a willingness to act upon it and that is commencing at line 25. 

What her Honour sets out is the evidence of the alleged acts in charges 1 and charges 3 to 18 given by RC, the complainant; the evidence of the alleged act in charge 2 which, of course, was an alleged act that related to RC but the evidence of that act was given by TB; and the evidence of other sexual acts alleged to have been perpetrated on RC, not the subject of charges - the uncharged acts, to be given by both RC and TB. 

Her Honour then went on to rule that the tendency evidence could be employed in the way requested by the prosecution, that is, for the jury to be able to reason that the accused – the respondent had a sexual interest in RC and a willingness to act upon that sexual interest and her Honour made that ruling. 

We say her Honour did not err in doing that.  Her Honour relied in the ruling on the Victorian Court of Appeal Case of JLS which was a single complainant case and that case established that the requisite probative value under the Evidence Act was met by demonstrating a sexual interest and a willingness to act on it in relation to a particular complainant.

We say that that line of authority in the Victorian Court of Appeal in JLS, which was relied upon in the case of Thu, in the case of Gentry referred to in our outline, that there is high probative value stemming from the specific tendency of an accused to show a sexual interest in relation to a particular victim. 

Now, this form of reasoning which the trial judge used - and there was a question as to whether that has survived as a result of the decision of this Court in IMM but that was the reasoning that was used and we say that in a case of this nature it was appropriate to reason on those lines.  What we say is that it was the nature of the relationship that allows that form of reasoning to be used.  It was once referred to as “guilty passion” evidence but the term, I think, well and truly now is established that it is “sexual interest” evidence and we say that that form of reasoning was available and was available because of the nature of the relationship that was established by the evidence.

Of course, here there was not only the evidence of RC that was available to establish the sexual interest of the respondent; there was also the evidence of TB, which was evidence that was independent of RC.  If one is looking for some kind of special reason to bolster the ability to use this reasoning, then in this case that can be found in the evidence of TB.

We submit that the evidence of TB assists to a significant extent in establishing the respondent’s sexual interest in RC and the willingness of the respondent to act upon it.  If there is a requirement and IMM ‑ although IMM was a particular factual scenario – implied that there was a requirement but if there is a requirement for there to be independent evidence to support this form of reasoning then in this case that independent evidence in any event was there because TB gave evidence in relation to charge 2 but also in relation to an uncharged act some two years later.

It was an uncharged act that we accept the Court of Appeal did not think much of but we say that it was an important piece of evidence because it involved TB observing RC with the accused in bed and the motion of moving up and down was observed.  TB gave that evidence and we say that that, together with the charged act, meant that albeit that this is a single complainant case, there was supporting evidence that came from another source.

So if one is considering the issue of support for the tendency which we say existed in this case then one is entitled, in our submission, to look at the evidence of TB which was supportive of the evidence of RC and it would have been open to the jury – of course, nobody knows which way the jury reason – but it would have been open to the jury to say, “We’ve heard the evidence from TB, we’ve heard evidence of an uncharged act from TB.  We’ve heard evidence of other uncharged acts in relation to RC.  We put that together then we can reach the conclusion that the accused had a sexual interest in the complainant and a willingness to act upon that”.

BELL J:   Can I just take your attention for a moment to an aspect of the trial judge’s ruling.  It is at the appellant’s further materials 244.  There is there beginning at line 16 discussion of section 101 of the Act.

If one were to accept for the present that evidence of TB of having seen the appellant place RC’s hand on his penis, and on another occasion when RC was a young child seen the appellant in bed on top of RC, both of those would be matters, taken with RC’s evidence, capable of showing a sexual interest in RC and a tendency to act on it.

But when one comes to consider whether the probative value of TB’s evidence substantially outweighed any prejudicial effect that evidence might have, one is looking, amongst other things, at evidence of a woman around 30 describing her memory of an event when she was four.  That might be thought to go to the assessment of probative value. 

Her Honour dealt with that at 244, seeming to rely on Chief Justice Gleeson’s analysis in Festa, of the concept of prejudicial evidence in the context of identification evidence and the notorious prejudice that may attach to photographic identification.  Is there a more detailed analysis by her Honour of how it was this evidence passed what some might see as the high threshold of 101?

MR KISSANE:   As I understand it, her Honour did not go much beyond what she said at page 244.

EDELMAN J:   There is also 252, is there not?

MR KISSANE:   252.  Her Honour turns back to it and says that she is ‑ at line 20, she talks about probative value outweighing the prejudicial effect and says that she is “satisfied that it does”.  And her Honour says that:

Any prejudice is due to the inculpatory nature of the tendency evidence and –

in her Honour’s analysis:

is not unfair prejudice.

NETTLE J:   Mr Kissane, the majority in IMM held that reliability is not a relevant consideration in determining probative value for the purposes of section 97.  Is it so also for section 101 or is it different there?

MR KISSANE:   Well, it left open that ‑ as I understand, IMM left open that question, your Honour, as to whether it was relevant to consider the reliability of the evidence in relation to section 101.

KIEFEL CJ:   Did it leave it open?  I thought the majority said the judge ruling was required to take the evidence at its highest and therefore matters such as credibility and reliability were not to be considered in relation to admissibility.

MR KISSANE:   Yes, and certainly that was said in relation to the section 97 test, your Honour.

BELL J:   Section 101 was not considered in IMM.

MR KISSANE:   Yes, but we would say that that would be – the same approach ought be taken in relation to section 101, that this evidence ought be taken at its highest.

NETTLE J:   Probative value is a defined term.  It is a defined term for all the purposes of the Act, so presumably it means the same in 101as it does in 97.

MR KISSANE:   Yes.

NETTLE J:   Which means it excludes considerations of reliability, dependability and credibility.

MR KISSANE:   Yes, and your Honour dissented I think in that point in IMM but ‑ ‑ ‑

NETTLE J:   I was wrong.

MR KISSANE:   Yes, and so – but we would say that when consideration of section 101 comes into play, then the evidence ought be taken at its highest and the evidence of TB albeit, as your Honour Justice Bell points out, there was a significant effluxion of time, the evidence, in our submission, taken at its highest, that it did establish those two events occurring, albeit from memory, had significant probative value and ‑ ‑ ‑

KIEFEL CJ:   Did her Honour deal with that issue, such a weight, in her charge to the jury – the weight of TB’s evidence?

MR KISSANE:   Her Honour dealt with TB’s evidence but, as I recall her charge, did not comment as to ‑ ‑ ‑

KIEFEL CJ:   It was dealt with in addresses?

MR KISSANE:   There was certainly a forensic disadvantage warning given I think in relation to the effluxion of time which to some extent would have dealt with that, but her Honour certainly did not comment on the weight of the evidence because, of course, once the evidence goes in, then it is a matter for the jury as to what weight they give it, subject to any forensic disadvantage warnings that are given or any unreliability warnings that are given.

KIEFEL CJ:   But none were asked for?

MR KISSANE:   We can check that, your Honour, but my recollection is that none were – that that was not a feature of her Honour’s charge, but we will check that.

GAGELER J:   Can I just ask you about an aspect of your earlier submissions about section 97(1)(b)? As I recorded what you said, it was to the effect that the reasoning and conclusion of the trial judge were available. So really my question is just the nature of the appellate review of the trial judge’s conclusion under section 97(1)(b) which in terms refers to what the court thinks. Now, on appeal against conviction under section 276 of the Criminal Procedure Act, what is the question for the appellate court looking at the trial judge’s conclusion under section 97(1)(b)?  Is it whether the conclusion was open or available, or is it whether the conclusion is in that court’s thinking the correct conclusion?

MR KISSANE:   The ultimate issue, of course, for the Court of Appeal is whether ‑ if there is an error or whether it has resulted in a substantial miscarriage of justice which is the way that section 276 is framed. What I would understand your Honour to be asking is does the court analyse the error in terms of House v King and see whether there was a discretion to admit the evidence was open to the court below and, if it was open, does it then look to see whether any of those classical House v King problems exist in this particular piece of evidence.

I have to say, that tends to be not the way that section 276 is interpreted on appeal. It tends to be that ‑ for the court to look at it afresh, see whether the evidence was admissible and if the court considers it not admissible then it considers whether there has, in fact, been a substantial miscarriage of justice.

So, whilst the court will look at it in a House v King type framework, if it was an interlocutory appeal it tends not to go down that path when considering 276 but rather just to look at it in a global fashion, was this evidence admissible, and if it was inadmissible, if there was an irregularity or an error, did it cause a substantial miscarriage of justice in the trial.

NETTLE J:   That is to say, it decides itself whether it was admissible under 97 without regard, as it were, to the trial judge’s determination. 

MR KISSANE: Yes. That is the way, as we understand it, section 276 has been interpreted by the – and I am not sure this Court has dealt with that aspect of it, but that is the way it is interpreted by the Court of Appeal.

GAGELER J:   Has that been articulated by the Court of Appeal?  It was not really clear to me how they were approaching it from the reasons in the present case and perhaps it does not matter.

MR KISSANE:   I am sure it has been articulated.  I do not have the authority here in front of me, your Honour, but I am sure that is the case, but it certainly does not proceed on a House v King type basis.  As his Honour Justice Nettle has indicated, it looks to see if there was – it looks for itself to see if there has been – if the evidence was admissible, if there has been an error.

NETTLE J:   My recollection is we took that from the New South Wales Court of Criminal Appeal in the early days of this Evidence Act.

MR KISSANE:   Yes, I am indebted to your Honour for that indication.  If I could come back to Justice Bell’s question for a moment, what we say is that it was not appropriate for the trial judge in dealing with section 101 to engage in an analysis of the quality of the evidence.  The evidence was there, it was required to be taken as its highest and the unfair prejudice that flowed from it in circumstances where charge 2 ‑ ‑ ‑

BELL J:   If I could halt you for a moment there, we are not concerned with unfair prejudice under 137 but we are concerned with the capacity of the evidence to substantially outweigh any prejudicial effect it may have on the accused.  That, on one view, is a high threshold and, as I understand it, her Honour was invited in the exercise of the 101(2) discretion to exclude the evidence and it is really a question of where we find that analysis.

MR KISSANE:   I am not sure that her Honour analysed it in any great depth but her Honour certainly found in relation to the section 101 point that this evidence did substantially outweigh any prejudicial effect.

NETTLE J:   That was because she found there was no prejudice of the relevant kind, that is to say improper prejudice but only proper prejudice in that it tended to convict.

MR KISSANE:   Yes.

NETTLE J:   Is that not what the reference to Festa is all about at page 244?

MR KISSANE:   Yes, and, in our submission, the approach her Honour took was adequate in these circumstances to deal with that issue.  So we say that the evidence of TB was certainly capable of not only providing sexual interest reasoning in relation to section 97 but also overcame the hurdle in section 101, the exclusion provision.

Of course, the thing that gave the evidence of TB in relation to the charged act and the uncharged act was that it was from an independent source from RC and so therefore in considering the 101 test was particularly powerful in providing evidence of the kind that we submit was appropriate in this case, that is that the respondent had a sexual interest in the complainant.

GORDON J:   Can I just ask two questions to clarify and that is, in relation to the tendency evidence ‑ and it may be that you are going to come to this – I understand your submission that it is sufficient for RC alone, one does not need the TB evidence in relation to this question.

MR KISSANE:   Yes.

GORDON J:   That is your primary position but in any event, consistent with what is said in IMM, it is a possibility that you can have that sort of relationship but here you have the added additional material - or evidence to be provided by TB.

MR KISSANE:   Yes.

GORDON J:   Is it the position the trial judge dealt with TB at 244 and then deals with this 101 question in relation to RC at 252 to the same effect – that is, this question about 97 and then 101?

MR KISSANE:   Yes, so 244.

GORDON J:   Dealing with TB and then 252 deals with RC, the passages Justice Edelman took you to earlier, I think.

MR KISSANE:   With respect to 101, I am not sure her Honour was confining that at that point to the evidence of TB.  I may be wrong about that.

GORDON J:   I think in 252 it is:

Having found that the proposed tendency evidence from RC is of high probative value, I turn to consider whether that probative value outweighs its prejudicial effect.

So 252 is clearly an analysis by the trial judge on that question.

MR KISSANE:   In relation to RC?

GORDON J:   Correct.

MR KISSANE:   Yes, and so her Honour certainly was live to the issue of 101 and deals with it on the basis that the combined effect of the evidence outweighs any prejudicial effect.  But it is the case, your Honour, that our primary submission is that TB’s evidence was there and gave support to the sexual interest reasoning.

But the sexual interest reasoning can also be found in the evidence of RC and in a case where there are 18 charges we say that the form of cross‑admissibility reasoning that would allow the jury to use the evidence of RC in relation to the sexual interest reasoning may have to be satisfied of the particular evidence of RC that they are dealing with - if it is an uncharged act it is okay; if it is a charged act, they may have to be satisfied of that charged act but they can use that as part of the evidence that sought to establish the tendency reasoning.

The way that ultimately it was left to the jury can be found compendiously in her Honour’s charge which is in the core appeal book at page 15.  Well, there are three references in the core appeal book in relation to her Honour’s directions in relation to the use of tendency evidence.  The first one is at page 15 where it said that:

The prosecution relies on the whole of the evidence of the alleged acts in each charge and the evidence of other sexual acts which are not the subject of charges to submit that [the jury] should reach the conclusion that [Mr Bauer] had a sexual interest in [RC], and he was willing to give effect to that sexual interest on the occasions alleged in each charge.

Her Honour deals with it in much fuller detail starting at the top of page 25 where her Honour refers to really the way that the “sexual interest” evidence is used, and that is as a piece of circumstantial evidence to support RC and her Honour deals with the area of support relating to sexual interest reasoning and at the bottom of page 25 her Honour sets out the evidence that the Crown relied on in relation to the sexual interest reasoning which was the evidence given by both RC and TB:

the alleged acts given by [RC] about Charge 1, and charges 3 through to 18; the evidence of the alleged act in Charge 2 given by [TB]; and evidence of other sexual misconduct not the subject of the charges, given by both [RC] and [TB].  These other acts were spelt out by [the learned prosecutor] in his address.

Her Honour directed the jury at page 27 as to how they could use that evidence.  The respondent:

had an ongoing sexual interest in [RC], you may use that conclusion to reason that the offence alleged in the particular charge you are considering is more likely to have occurred, and use that as part of your decision as to whether you are satisfied beyond reasonable doubt that the alleged act in the charge actually occurred, based on the direct evidence of that act.

Her Honour put it slightly differently at page 55 where her Honour said that:

[RC] also gave evidence of a number of other alleged acts of misconduct that were not subject to charges.  That evidence, if accepted, goes to proving that the accused had a tendency to have a sexual interest in [RC] and that he was prepared to act on that interest.  That then can be used when considering each charge individually and makes it more likely that the accused committed that act.  That same reasoning applies if it is proven that the accused committed any of the charged acts.

So, if the jury was satisfied that the accused had committed any of the charged acts, then that could be added to their consideration of sexual interest and tendency reasoning.

So, to come back to Justice Gordon’s question, we say that this was a case where there were 18 charges on the indictment.  It was open to the jury and her Honour left it open to the jury to reason as to cross‑admissibility effectively in relation to these charges and so if the jury was satisfied of any one of the charges then that became part of the evidence that could be used in establishing the sexual interest. 

We say that that form of reasoning can be used – that form of cross‑admissibility reasoning can be used even in circumstances where there is no particular piece of independent evidence.  So where there are, as here, a number of charges that are before the court, if the jury is satisfied of any one of those charges then that in itself can form the basis of tendency reasoning, that is, that having been satisfied of any one of those charges makes it, when considering another charge, more likely that the accused has committed that other charge. 

Now, obviously, in a hypothetical circumstance where the jury might consider a particular charge to be stronger for various reasons it may have a particular ring of truth about it.  It may be that the particular charge has a considerable number of details attached to it such that a jury says, well, yes, we are satisfied of that charge.  We put that together with the other evidence and we are satisfied that this accuser we are dealing with had a sexual interest in the complainant and a willingness to act on it.

In our submission, that is the form of reasoning that was employed by the Court of Appeal in the New South Wales case of R v Versi which came on appeal to special leave in this Court before an enlarged Bench.  But that Court of Criminal Appeal in New South Wales, albeit that in Versi there was some coincidence evidence from - SD1 was the initials used in that case - that was said to assist in the reasoning, the court in Versi, in our submission, found that it was appropriate for the jury to be directed that they could reason if they were satisfied of one charge - and in New South Wales that requirement was satisfaction beyond reasonable doubt - but if they were satisfied of one charge to that level then they could use that as when they were considering another charge as going to the probabilities that that charge occurred.  

That is really using the same form of reasoning, that is, sexual interest reasoning having found that one charge occurred and being satisfied of that then, in our submission, it is open to then engage in that form of reasoning.

So that is why, coming back again to Justice Gordon’s question, that is why we say that it is not strictly necessary in every case, and I think IMM accepted that it was not strictly necessary in every case for there to be some independent evidence or special reason.  But in a case where one deals with a large number of offences, that reasoning can come from those offences themselves once a jury reaches a state of satisfaction in relation to that particular argument.

EDELMAN J:   That point really is the text of 97(1)(b), is it not?  It is either by itself or having regard to other evidence to be adduced.

MR KISSANE:   Yes, and so once there is a state of satisfaction in relation to other evidence, then albeit that that evidence may be a charged act, then one can then engage in - that can then be relevant in relation to sexual interest reasoning, both at the admissibility stage and then of course once the jury comes to consider the evidence before it. 

Her Honour in directing the jury directed them that they could include the charged acts in the sexual interest reasoning if they were obviously, in relation to the charged acts, satisfied that they had been committed.  That is the form of reasoning that particularly Adams J in R v Versi at paragraph 128 in his judgment effectively said that once the applicant’s guilt on any count is established then that can be used as going to the tendency and as part of the circumstantial case in relation to the other charges. 

So we rely on what is said in that decision for the proposition that it is - in a case of this kind where there are 18 charges it would be completely unrealistic, in our submission, to expect a jury to reason - obviously they have to start somewhere - once they reason to a state of satisfaction in relation to one or more of the charges then that evidence must be relevant, in our submission, in relation to considering the probabilities that the accused has engaged in the behaviour in relation to the charged act that they are considering. 

It is the sort of cross‑admissibility that, in our submission, Justice Nettle was referring to in Hughes when he dealt with – when your Honour dealt with AK I think it was in relation to charges 7 and 9 and said that those charges were cross‑admissible.

In our submission once one is dealing with a large body of charges, then the jury ought then – it becomes relevant as to whether those charges are cross‑admissible.  In our submission, here they were and once the jury is satisfied in any one of them, then that can be used as a form of – as part of the tendency to have a sexual interest in the complainant.

So, we say that this charge – this indictment and this form of reasoning is significantly different from the factual scenario that was dealt with in IMM where there was one, in effect, uncharged act which was said to form the basis of tendency reasoning in relation to the charged acts.  We say this case is different for a number of reasons from IMM, firstly, simply because of the number of charges involved, the period of time over which the offending is said to have occurred.

There were a number of uncharged acts which were set out.  They do not actually find their way into the charge, her Honour just refers to the uncharged acts that the prosecutor refers to, but they have found their way into the – I can find the reference to that in due course, but the uncharged acts were not insignificant.  They, for example, involved showing the complainant pornographic videos and asking her to act out what was on those videos and that occurred, she said, over a significant period of time, a 10‑year‑period in relation to the offending.

There were other uncharged acts that were referred to.  That all formed the body of evidence that could be used as part of the sexual interest reasoning and then, of course, on top of that there is the evidence of TB which goes to charge 2 and another uncharged act which is also independent – which is independent of RC.  So, all of those matters taken together, in our submission, make this a case that is significantly different from the scenario that this Court was faced with in IMM where there was one uncharged act said to have significant probative value in relation to the charged acts.

NETTLE J:   I suppose that was also different in that it came after all the others that were last of all.

MR KISSANE:   It was last of all and it was a charge that ‑ it was an allegation potentially seen in a more minor key than the charged allegations.  As I read IMM, there does not seem to have been any argument that was put in IMM about the cross‑admissibility of the charges and what that uncharged act added to that cross‑admissibility which may have been in argument but the trial was not ‑ in that case, was not conducted in the way this trial was where there was cross‑admissibility across the charges, and so that in relation to IMM was a charged act and this Court found that that did not have significant probative value so did not even make the section 97 test.

BELL J:   On one view, a number of members of the Court came to that conclusion for the rather simple and obvious point that a person whose credibility in relation to allegations of a sexual nature is the central issue at the trial, it does not significantly assist in the resolution of that critical issue to know that they have made a like allegation as distinct from a case such as this where you have some independent evidence tending to support a conclusion as to the tendency in question.

Each case has to be looked at on its own.  IMM was not laying down a rule that one can never adduce tendency evidence of sexual interest in a case involving a single complainant but that frequently it will not reach the level of significant probative value.

MR KISSANE:   Yes, and we say that this case is different from that in that this is not a case where there was only one uncharged act that, as Justice Nettle pointed out, occurred afterwards, but this is a case where there was a whole body of evidence.  There was the evidence from TB as your Honour points out, but there were also other uncharged acts that were said to be part of this tendency.

BELL J:    Conceivably, depending on ground 4 going to the evidence of complaint, but plainly there was some significance to RC’s evidence relating to being shown pornographic videos.

MR KISSANE:   Yes, and she said that that had occurred over the time of the offending so that was something that was going on not just at the early stage but throughout the offending.  It might be convenient if I take the Court to the – it is found in the respondent’s book of further material at page 187.  This is the prosecutor’s final address. 

Her Honour refers to this in the charge and does not repeat it but what occurs at this page is that the learned prosecutor sets out the other uncharged acts.  At lines 2 to 6 he talks about other alleged misconduct and talks about it happening all the time.  If you remember there was the Port Macquarie incident which, of course, was not charged because it was out of the jurisdiction so there is no charge for that.  Then further down at line 16:

Did he have a tendency to have a sexual interest?  Not just by sexual acts.  Things he said.  Peeking in through doors.  Touching her all the time.  The things that she’s told you about.  But not necessarily subject to charge.

He also refers to, if I can find it, over at page 194, line 5:

You remember her evidence, it was quite detailed at the early part of her evidence . . . about him having pornographic videos and how he had her watch them and then engage in sexual activity that was being depicted on those videos.

So, there was a body of uncharged acts and then the prosecutor goes on to talk about the support in relation to those pornographic videos from the evidence of complaint from AF.

BELL J:   Just while we are looking at uncharged acts, can I raise with you one aspect of the Court of Appeal’s analysis?  It begins at core appeal book 171 and goes over to 172, paragraph 68.  The court commences by talking of section 97 which, of course, is concerned with tendency evidence but then their Honours refer to the fact that evidence of uncharged acts in sexual cases has often been recognised as evidence that tends to explain the relationship between the parties or sometimes one might say it puts evidence in context. 

It is just not clear to me whether the court is distinguishing, as some might think conventional, between evidence that is adduced of uncharged acts that have a sexual colour to them that are led simply in order to explain the complainant’s evidence but that are not the subject of tendency directions because they are not adduced for that purpose and evidence that meets the test in 97 and 101 in relation to tendency evidence.  Do you accept that there is a distinction between the two or are you suggesting all uncharged acts are relevantly evidence of tendency to have a sexual interest in a complainant?

MR KISSANE:   We would accept there is a difference between the two, that evidence of uncharged acts can be led for context - actually one is called “context in relationship” evidence.

NETTLE J:   It was a 3/3 split in HML about it.

MR KISSANE:   Yes, that is right, your Honour, and it was also split as to the burden that applied in relation to those matters but ‑ ‑ ‑

NETTLE J:   It goes to both, does it not?  It goes both to tendency and also to context.

MR KISSANE:   Yes, I think that is right, your Honour.  What I think the Court of Appeal in Victoria tends – and I think the New South Wales Court of Appeal is probably similar, tends to take the concept of sexual interest which is guilty passion, as tendency rather than context and where it is led solely as context would actually probably require an anti‑tendency direction to be given so that if it is led simply to set the background or to provide evidence that this did not occur out of the blue or matters of – that are traditionally in that context area then in Victoria there would almost inevitably be an anti‑tendency direction given.

We submit that it has in fact become much more common for sexual interest reasoning to be considered to be tendency reasoning.  There is a suggestion that if it is only led as to sexual interest and not a willingness to act on it then that can come – if there is no willingness to act on it as part of it then that can come under the context evidence. 

In New South Wales there were, in the early days of the Evidence Act, there were cases relating to motive and the like that showing a sexual interest showed a motive to commit the offences which did not engage tendency reasoning.  But we submit that although it clearly is, as Justice Nettle points out, admissible for context and for tendency - and here her Honour did give directions in relation to its use as context evidence. 

BELL J:   Well, there are two things there, are there not:  one, the admissibility depends on a threshold test that ultimately is quite high in relation to tendency evidence, and the requirement of judicial directions as to the use to be made of tendency evidence is an important determinant.  It is necessary to understand what the basis of evidence of uncharged acts is.

MR KISSANE:   But by framing, and I think this is the way that it seems to now be framed, by framing evidence of what used to be called guilty passion or relationship evidence which - as tendency evidence rather than context evidence means that it actually has to get over that higher hurdle.  Perhaps it did when this Court considered HML and was dealing with a common law and dealt with it in terms of context and relationship evidence, albeit that I think as Justice Nettle points out, three of the judges in HML effectively found that it was propensity evidence. 

But our submission is that as things now stand, it seems to be much more settled that when one is talking about a sexual interest in a complainant and a willingness to act upon it, that that is evidence that shows a tendency rather than simply matters of context, context that ‑ ‑ ‑

BELL J:   Yes.

MR KISSANE:   So we accept that this evidence was – it was required that it meet that higher hurdle of tendency evidence, but we say that that is – that is met in a single complainant case much more readily because we are talking about a sexual interest in the one complainant.  There is no attempt to use it as a sexual interest in relation to children or particular children.  It is a sexual interest in the one complainant.  So we submit that it is easier therefore to – in a case of this nature to get over the sections 97, 101 hurdles and have the evidence admitted for the reasons that the trial judge set out.

Of course, that brings me around, in a circular way, back to all of the matters that we say can be used which are significant to support the argument that this evidence has, in combination, taking all of the evidence into account, significant probative value which outweighs any substantial prejudicial effect.  Now, although I have moved from my outline, I think I probably have covered most of what I wish to say in relation to tendency evidence.  Ground 3, of course, is allied with ground 2.

KIEFEL CJ:   If you are right about ground 2, there is no question of severance.

MR KISSANE:   That is the case, your Honour, and if we are wrong about ground 2 ‑ ‑ ‑

KIEFEL CJ:   You say that a strong direction would cover the ‑ ‑ ‑

MR KISSANE:   Yes.  A strong separate consideration direction would cover it but really we accept that the argument in relation to ground 3 is aligned with ground 2, which brings us to ground 4, which is the complaint evidence in this case.

We say that this evidence was capable of being used as complaint evidence.  We accept that it is a bit hard to be precise as to the exact timing of it but a complaint was made to AF, it seems not a great deal of time after RC moved away, moved into the house that AF was staying in.  So it is a complaint that we say is made, relatively speaking, close to the end of the period of sexual offending.  December 1998 was when the complainant moved out and the complaint to AF - she moved in with AF it seems in January and the complaint was made within a short period of time. 

So we submit that this evidence was capable of meeting the test in section 66 of the Evidence Act, that it was capable of being fresh in the memory of the complainant, and we say that this was not a case like the one that the Court of Appeal considered of Pate v The Queen where there was a gap of 12 years between the end of the offending and the complaint being made.

We say that the Court of Appeal was correct in this that in determining whether the occurrence of a representation is fresh in the memory of a person – the test is found at page 188 of the core appeal book in the Court of Appeal’s decision - that it is necessary to take into account all of the matters that are considered relevant, including the nature of the event, the age and health of the person and the period of time between the occurrence of the asserted fact and the making of the representation, and that section 66(2A) of course was introduced as the note in the Act indicates in response to the decision of the High Court in Graham v The Queen.

We submit that in this case the evidence was capable of being fresh in the memory, albeit that it related to events that occurred over a significant period of time.  We submit that there is a compounding effect that occurs when allegations of sexual abuse are made over a significant period of time and that this is not a case where somebody is trying to remember something that occurred 12 or more years earlier, but something that has been repeated over a lengthy timeframe and that that has a compounding effect such that when complaint is made at the end of that period it is capable of being, in our submission, seen as being fresh in the memory of the complainant.

I took the Court just before to the – I think I stopped at the point at – this is in the respondent’s further book of materials, at page 194 ‑ ‑ ‑

GORDON J:   Sorry, I missed that page number, could you just give it to me again please.

MR KISSANE:   Page 194, your Honour, where the prosecutor talks about the complaint – talks about that AF was crying at line 15 and she then moves on to complain about the pornographic videos and he relies on that as evidence of consistency in her complaint which seemed to be the main way the prosecutor put the evidence to the jury, albeit that the trial judge, it is conceded, left the evidence in accordance with Papakosmas that it went both to credibility and as some evidence of the happening of the events.

We say that the evidence that was given by the complainant was not such that it should have been excluded.  The Court of Appeal made much of the way that the evidence was elicited from the complainant as being part of what was described as a “guessing game”.  We say that there was no more than questions to which the complainant responded, yes or no, in circumstances, of course, where somebody is making representations about matters that are, ordinary human experience would indicate, difficult to talk about and difficult to make representations about that there was nothing inherently lacking in the way that the evidence was given.

And, in addition, of course, the evidence was that the complainant volunteered that the evidence about the pornographic videos – that part seems to have been not the result of questioning but seems to have been volunteered and she confirmed that in re‑examination that that was something that had been volunteered.

So, we say that the evidence was capable of being fresh in the memory and that the Court of Appeal erred in its approach.  Its approach seems to have been, if one goes to page 190 of the core appeal book – seems to be one of requiring that there be evidence that the occurrence of the asserted fact was fresh in the memory of RC at the time.  That is at paragraph 112.

We say that in the ordinary course of events, whether a representation of this nature is admissible or not would ordinarily be something of inference from the circumstances surrounding the representation and that it would be unusual for a complainant to put forward what would essentially be an opinion that this was fresh in the memory as opposed to a court looking at the surrounding circumstances.

We say that the Court of Appeal erred in requiring that there be evidence beyond the evidence of when the complaint was made and the circumstances in which it was made but there be evidence that the asserted representation was fresh in the memory of the complainant.

The other matter that the Court of Appeal considered important in that paragraph was that the representation was generic and non‑specific as to activity but we say that is hardly surprising when one is making a representation to in effect a girlfriend in circumstances where the offending had proceeded over a lengthy period of time.  One would expect that the representation would be to some extent generic and non‑specific simply because of the number of events that were involved and the considerable period over which the events took place.

Of course, once the evidence is fresh in the memory, in our submission, it then is relevant evidence to put before the jury.  There is no higher test in relation to complaint evidence.  It would be admissible if it was relevant, subject to the discretion in section 137, which the Court of Appeal also dealt with, to exclude the evidence if its probative value was outweighed by the risk of unfair prejudice.

We say that in circumstances where this is really a representation about charged acts where a complainant has given a significant amount of evidence about 18 charges that the possible misuse of the evidence is, in our submission, at a minimum.

NETTLE J:   The Court of Appeal seemed to put it more on the basis that it lacked probative value rather than being productive of improper prejudice.

MR KISSANE:   Yes, and that was – and in a sense I have dealt with that, your Honour, because they said it was the product of a guessing game which was, in our submission, really no more than question and answers eliciting the evidence but there was also evidence that came from the complainant, so we ‑ ‑ ‑

NETTLE J:   I suppose it also brings us back to this question of probative value that was touched on under section 101 in view of the majority’s decision in IMM.

MR KISSANE:   So here, in our submission, it would be required to be taken – the evidence would be required to be taken at its highest and not assessed as lacking in probative value because of the way the evidence was elicited as long as the evidence was there and was relevant and met the threshold test, in this case, of “fresh in the memory” then, in our submission, it was admissible.  It was not, to the extent that the Court appears to be making an assessment of its own probative value, we would say that that is inconsistent with IMM. 

EDELMAN J:   Is it an all or nothing question here?  In other words, is section 66(2A) a section that applies to these circumstances either to encompass all of the events as being about which evidence was given as being fresh in the memory or potentially some of them?

MR KISSANE:   In our submission, it would be admissible even if it related to some of them, it would not necessarily need to encompass all of them.  The representation – for example, if there was a representation at the end of the period that quite obviously related to the last act and was specific enough to relate to that last act then that would be admissible.

EDELMAN J:   But what about then earlier acts that are spoken of?

MR KISSANE:   It may not – I mean, it may be necessary to if it is that specific to limit the use of evidence so if it is specifically about the last act and specifically was a representation about that then one could envisage a direction that made it admissible in relation to that act.

NETTLE J:   The section 136 direction?

MR KISSANE:   Yes, in the sense that ‑ it may not even need to be section 136 in the sense that that would be the act that it is relevant for.  So, it is submitted as relevant to that last act and not to the other acts so there would be a limiting direction that flows from the section 55 issue of relevance.  So, it would be open for representations to be admissible only in relation to part of the period or part of the allegations that are made.  But, in this case, what we say is that this was a generic complaint that was not directed towards any particular act but was related to the overall offending, this is what ‑ ‑ ‑

EDELMAN J:   So if one looked at paragraph 103 of the Court of Appeal’s decision at page 186 of the appeal book, then the evidence that is described in that paragraph you say is all evidence within section 66 of the occurrence of a single asserted fact?

MR KISSANE:   No, it is evidence within section 66 that a series of events occurred.

EDELMAN J:   Would the question then need to be whether for each of those events they were each fresh in the memory or was it simply argued as a binary issue?

MR KISSANE:   It was argued as an overall issue; it was not split up in the way that your Honour says or is suggesting it might have been.  It was simply done as at the end of the period there was a complaint made and so the generic nature of it would be one that may well be relevant to the weight that a jury attaches to it but, in our submission, it would not make it inadmissible as evidence of a representation. 

In the way that it came out, it does not just refer to one act; it refers to a number of acts.  It refers to the watching of pornographic videos and making her act out what was done in those videos, which was in fact a general uncharged act which she talked about which occurred ‑ which the complainant said occurred over the period.

We say that that was capable of meeting the test in section 66(2) and (2A) as being fresh in the memory and that it was not done in this case to say that this was admissible in relation to this charge because it detailed the particular event that occurred in this charge but not in relation to the other charges.

In my submission, if one analyses it as a piece of circumstantial evidence –and we say that is what it was, it was a piece of circumstantial evidence that was capable of supporting the complainant’s evidence, then there was no requirement to specifically say it had to relate to charge 12 or charge 14, or whatever, as the case may be.

It was a general piece of circumstantial evidence about a representation made at the end about offending that could only be seen as fresh in a person’s memory, and it will be not the sort of thing that one forgets, and it was evidence that could be used in that general sort of way that circumstantial evidence is used in supporting the other evidence that relates to the case.

So here the complainant gave evidence about each specific charge.  It would be unusual for, in a case of this nature where there is a large number of charges, for complaint evidence to ever be about a particular charge in that sequence of events.  It would usually be of a general nature complaining that the accused, whoever he or she may be, is doing this to me, in a general way and that would be the usual way that complaint evidence ‑ ‑ ‑

BELL J:   But it is not really circumstantial evidence.  Under 66, evidence of the previous representation is being received with respect to proof of the asserted fact, is it not?

MR KISSANE:   Yes, it goes in as proof of the asserted fact.

BELL J:   And the asserted fact here seems to be a number of things.  There is an asserted fact that the appellant made RC watch pornographic videos and made her act out what was done and an asserted fact that she sucked him off and so forth.  I just do not understand the contention that it is some sort of circumstantial evidence that is admissible at large - I mean there is a purpose for leading ‑ ‑ ‑

MR KISSANE:   Yes.  It becomes evidence of ‑ some evidence of the charge and evidence going to – some evidence going to consistency.  So maybe “circumstantial” is the wrong word but once it is admitted then it becomes evidence that, for example, assists in, as circumstantial evidence sometimes does, assessing the credibility of the person who made the representation.

MS BOSTON:   No; it is the additional transcript which has been provided.

KIEFEL CJ:   It starts from page 286 and I think you are taking us to page 442.

GORDON J:   Thank you.

MS BOSTON:   This is in relation to an interview.  TB had an interview with Department of Human Services workers following RC’s allegations, for an hour and a half.  They raised with her her apparent assertion to RC’s friend [C] that [C] had asked TB, “Did you say that RC had had sex with dad?” and TB denies it.

The significance of this is simply that we objectively know but at least as of 1999 to 2000 TB is aware that it has been asserted that she had said that RC had had sex with dad.  That was the 1999 to 2000 summer holidays.  Then on 28 January 2000, that is when Department of Human Services workers spoke to TB for an hour and a half in light of RC’s allegations. 

Your Honours will see reference to that in attachment A on the second page, and I should say not all of this evidence was before the jury.  I can go individually through which bits made it to the jury and so forth, but it is not specifically relevant whether there is evidence of contamination. 

In 2000, TB made – learned from the police that RC had made an allegation about something of a sexual nature having happened in Port Macquarie between the respondent and RC.  This is apparent from the appellant’s book of further materials at page 87.  I am sorry, that is wrong.  It is at the respondent’s book at pages 86 and 87.  At the bottom of page 86 the statement is there read out to TB in her evidence.  What she said was:

“I have been informed by police that [R] has made some allegations against [the respondent], my father that she was sexually assaulted by him.  At no time have I ever known from my father . . . to have sexually assaulted RC, and RC has never mentioned anything of the kind to me at all.”

And then further on down the page, line 9, this is a statement:

“From speaking to police, I was informed that [R] has made a sexual allegation against my father whilst we were in Port Macquarie in 1995.  I did go to Port Macquarie with my family in 1995, but at no time did I see or witness my father do anything to RC.

So, we know for a fact that she knows at least that there have been allegations of some kind of sexual incident in Port Macquarie.

BELL J:   This material, you tell us some of it was before the jury and some was not.

MS BOSTON:   Yes.

BELL J:   You told us earlier that part of the suggested prejudice faced by your client was the inability to cross‑examine TB about matters of possible concoction or collusion.  That does not include this material surely?

MS BOSTON:   That is true.  It is more ‑ ‑ ‑

BELL J:   So this was material that was available to test TB before the jury.

MS BOSTON:   The statement was before the jury.

BELL J:   Yes.

MS BOSTON:   What was deleted was what she had said about her own allegations.

BELL J:   Yes.

MS BOSTON:   That did not, for obvious reasons, make it before the jury.  Really, for present purposes, I am just trying to set out some of the main matters which demonstrate this was ‑ ‑ ‑

BELL J:   Just so I understand, at the point where the judge was asked to rule on the admissibility of TB’s evidence and the associated application to sever the indictment, was there some application that put together all of this evidence so that the trial judge was looking at it and the trial judge was looking at all the evidence that is set out in summary form in table A.  Is that right?

MS BOSTON:   Attachment A was before her Honour.  This attachment was the attachment to the defence tendency submissions.

BELL J:   Yes, all right.

MS BOSTON:   It does not specifically refer to the [C] evidence but that was before her Honour as well.  The other matters are all set out in there.  One other piece of information is at pages 32 to 33 of the appellant’s book of further materials.  This is where there is a meeting in Geelong between the two women: 

You spoke about the allegations against [Mr Bauer]?---Yes.

Is that right?---Yes.

Are you saying – I will just ask you, with [R], did she go into detail about her allegations against [the respondent]?---No, no.

All right?---The only thing that was in – well, not really in detail was the fact that she had told me that yes, he was in her bed that night when I told mum.  That’s the only thing that she spoke about.

This is…..with uncharged fact B1, the incident at Shepparton.  We know she has that piece of information as well.  Often evidence - the contamination and concoction and so forth is evinced by similarity of allegations.  Here there is not a similarity specifically of allegations, but what there is is that these pieces of information that she has had have formed – that is the information that she ultimately gives, these four pieces of information.

KIEFEL CJ:   Is it concoction or credibility that you are really talking about?

MS BOSTON:   It is contamination.  All of them were raised.  All of them were relied upon, whether it is concoction or merely contamination.  The risk of contamination, we would submit, is particularly significant given the lengthy delay and the way that one’s memory over such a lengthy time behaves.

But, in our submission, those four pieces of information have effectively – it is notable that in respect of Port Macquarie, all that TB says is that she has heard voices.  She does not go into any detail about what has actually happened.  In respect of the Shepparton incident, it is effectively – it is in line with what she has been told by [C] that [C] asked TB if she had said that RC had had sex with Dad.  So, in our submission, there is a real question about contamination and concoction.  Unless there are any further issues I can assist with, those are our submissions.  May it please the Court.

KIEFEL CJ:   Thank you, Ms Boston.  Yes, Mr Kissane.

MR KISSANE:   Thank you, your Honour.  Just in relation to this 101 point and the impact that contamination has upon it, can I firstly take the Court to page 180 of the core appeal book where the court examined this issue although the court does not, as was pointed out, go on to make any determination in relation to section 101.  The court indicated that they had examined the tables that my learned friend has referred to, at line 42:

An examination of that evidence provides thin support, in our view, for the proposition that RC’s evidence was the product of contamination, concoction or collusion.

That is all, as I understand it, the court found in relation to that.  In relation to the ruling of the learned trial judge, I think I was looking at the wrong ruling when Justice Gordon was asking me questions earlier, but in the third ruling at page 258, at line 19, her Honour deals with – says that she has:

conducted an examination of the proposed evidence from TB having regard to her statements to police, her evidence at committal, and her evidence at the first trial, as well as the evidence from RC.  I am satisfied that there is no real possibility of contamination or collusion, principally because RC made the statement to police which outlines all of her allegations in 2000, at a time when no other alleged victim was known to her or, indeed know to anyone in authority.

Then her Honour goes on at page 259 in any event to find that it is not - in “a single complainant trial” contamination, possibility of contamination, she says is not relevant and then her Honour goes on to consider, in relation to TB, and I think this is the part I missed this morning, at line 16 of 259:

Having found that the proposed tendency evidence of TB is of high probative value, I turn to consider whether the probative value of her evidence outweighs any prejudicial effect on the accused. 

Her Honour obviously left out the word “substantial” there, but nonetheless she references section 101(2) in the footnote.  She says that her Honour finds that she is:

satisfied . . . for the same reasons advanced in Ruling No. 2 -

That is the probative value substantially outweighs the prejudicial effect.  Her Honour then deals specifically, commencing at line 23:

Senior counsel for the accused submitted that an additional prejudice arises because of the fact that TB also makes allegations against the accused and it cannot be put to the jury in the trial involving RC alone that TB has a motive to lie on the basis of her allegations without introducing that prejudicial material to the jury.  In my view, that is a forensic decision for counsel. 

In our submission, those matters were covered by her Honour and the Court of Appeal was alive to them.  The only finding in the Court of Appeal’s judgment is that there was thin support for any argument about concoction, collusion or contamination.  They are the only matters in reply.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow for pronouncement of orders and otherwise to 10.15 am.

AT 4.11 PM THE MATTER WAS ADJOURNED