R v J, SM - [2013] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v J, SM
[2013] SASCFC 96
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice White and The Honourable Justice Blue)
20 September 2013
CRIMINAL LAW - EVIDENCE - CREDIBILITY - REPUTATION FOR UNTRUTH
CRIMINAL LAW - EVIDENCE - CREDIBILITY - EVIDENCE IN CONTRADICTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
The defendant was convicted by a jury of sexual offences againt his daughter S. The complainant’s brother A gave evidence of complaint and to a limited extent by way of corroboration. The trial Judge disallowed a question in his cross-examination as to whether the complainant should be believed on her testimony. The Judge also ruled that the defendant’s counsel could not cross-examine A about a document, said to have been authored by him and containing an adverse comment about the complainant’s credibility.
The defendant contends that the trial Judge erred in law in precluding his counsel from:
1.       questioning A as to whether the complainant should be believed on her oath; and
2.       cross-examining A on the document.
The Director of Prosecutions contends that the oath-belief rule on which the defendant relies for these contentions should no longer be recognised as part of the common law of Australia.
Held per Blue J (Kourakis CJ and White J agreeing):
1.       The oath-belief rule has been recognised by other intermediate courts of appeal. Accordingly, the question of whether it continues as part of the common law of Australia is a matter to be determined by the High Court (at [77]-[78]).
2.       The oath-belief rule does not require the witness’s opinion to be based only on general reputation and not upon personal knowledge (at [87]).
3.       The form of question asked by defence counsel was not in accordance with the oath-belief rule. However, the Judge ruled against defence counsel’s line of questioning rather than the specific question (at [91]).
4. Section 23 of the Evidence Act 1929 (SA) has no application because it addresses the credibility of the witness being questioned and not the credibility of another witness (at [98]).
5.       The Judge erred in upholding the prosecutor’s objection to the document on the grounds that its provenance had not been proved. However, the defendant was not permitted by the oath-belief rule to adduce specific evidence concerning the complainant’s credibility beyond the question whether she was to be believed on her oath (at [112]-[115]).
Held per Blue J (White J agreeing):
6.       The proviso should not be applied.
The defendant was deprived of the opportunity of obtaining a favourable answer to the disallowed line of questioning. It is difficult for this Court to determine the effect of such an answer on the jury’s assessment of S’s credibility. It is not possible for this Court to be satisfied that the jury would inevitably have convicted the defendant (at [101]-[107]).
Per Kourakis CJ (dissenting):
It is unlikely that A would have answered the question about the complainant’s credibility favourably to the appellant and the Judge’s refusal to allow the question did not result in a substantial miscarriage of justice (at [4]-[6]).
Per Blue J (White J agreeing):
7.       Appeal allowed. Convictions by the jury set aside. Matter remitted to the District Court for retrial.
Criminal Law Consolidation Act 1935 (SA) ss 49, 58, 72, 353; Evidence Act 1929 (SA) ss 23, 29, 34M; Evidence Act 1995 (Cth) ss 101A, 102, 103, 106; Evidence Act 1995 (NSW) ss 101A, 106; Evidence Act 2008 (Vic) ss 101A, 102, 106; Evidence Act 2001 (Tas) ss 101A, 102, 106; Supreme Court Criminal Appeals Rules 1996 (SA) r 4A, referred to.
Driscoll v The Queen (1977) 137 CLR 517; Goldsmith v Sandilands (2002) 76 ALJR 1024; PGA v The Queen (2012) 245 CLR 355; R v BDX (2009) 24 VR 288; R v Gunewardene [1951] 2 KB 600; R v Hurst [2011] SASCFC 152; R v Richardson [1969] 1 QB 299; R v Scott (1996) 137 ALR 347, discussed.
Attorney-General v Hitchcock (1847) 1 Exch 91; Bell v The Queen (1985) 63 ALR 433; Duke of Norfolk Divorce Suit (1969) 12 How St Tr 899; Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Harris v Tippet (1811) 2 Camp 637; Lord Chancellor Macclesfield's Trial (1725) 16 How St Tr 1239; Maric v R (1978) 20 ALR 513; Natta v Canham (1991) 32 FCR 282; Nichols v The Queen (2005) 219 CLR 196; Quartermaine v The Queen (1980) 143 CLR 595; R v Cargill [1913] 2 KB 271; R v De La Motte (1781) 21 St Tr 687; R v FTG [2007] VSCA 109; R v Hanrahan [1967] 2 NSWLR 718; R v Hoben [2000] QCA 384; R v Johnson & Edwards (No 2) [1982] Qd R 555; R v Lawrence (2001) 124 A Crim R 83; R v Laycock and Stokes [1999] QCA 307; R v Maloney (1888) 14 VLR 934; R v Nylander (2003) 228 LSJS 24; R v PDW (2009) 197 ACR 1; R v Rowton (1865) 34 LJ (MC) 57; R v Southon (2003) 85 SASR 436; R v Watson (1917) 2 Stark 116; 171 ER 571; Simic v The Queen (1980) 144 CLR 319; Smith v The Queen (2001) 206 CLR 650; Toohey v Metropolitan Police Commissioner [1965] AC 595; Urban Transport Authority of NSW v Nwelser (1992) 28 NSWLR 471, considered.

R v J, SM
[2013] SASCFC 96
Court of Criminal Appeal: Kourakis CJ, White and Blue JJ

KOURAKIS CJ: For the reasons given by Blue J, the refusal of the Judge in this case to allow the appellant’s counsel to ask A whether, in his opinion, the complainant should be believed on her oath was a wrong decision on a question of law for the purposes of s 353 of the CLCA. The appeal should therefore be allowed unless this Court is satisfied that the error did not produce a substantial miscarriage of justice. On that question I take a different position to that of the majority.
The test which should be applied for these purposes is the test applied in cases of alleged miscarriages caused by the discovery of fresh evidence or the incompetent failure of counsel to lead material evidence. The test is whether there is a significant possibility that the jury acting reasonably would have acquitted the appellant had the evidence [belatedly discovered, negligently omitted or erroneously excluded] been adduced at trial.[1] In the case of a failure to adduce evidence through either the incompetence of counsel, or its earlier unavailability, the evidence not adduced must be put before the Court of Appeal because, to establish the miscarriage of justice, it is necessary to demonstrate that there was favourable evidence to be adduced. When an error of law is established the onus is on the prosecution to bring the appeal within the proviso. To succeed in so doing, in a case such as this, the prosecution must show that the error of law did not exclude any evidence on which the jury, acting reasonably, could have acquitted the appellant.
[1] R v Scott (1996) 137 ALR 347, 365-366; R v Hurst [2011] SASCFC 152.
The evidence given by A against his father is significant in this respect. A testified that S had complained to him about the appellant’s offending. A also gave evidence that he had heard the appellant call S into his room in a way which was consistent with S’ testimony. So incriminating was A’s evidence that, during the course of cross-examination, the appellant’s counsel put to A that his testimony was false. It also appeared from the cross-examination of A that he was, for a time, dependent on the appellant for accommodation and that the appellant had found him employment. That fact may explain to some extent the letter and facebook correspondence on which the appellant sought to rely at trial.
A’s evidence as a prosecution witness shows that at the time of trial he held a favourable view of her credibility. In my opinion, having regard to the content of A’s evidence, it is very unlikely that he would have answered the question about S’ credibility favourably to the appellant. I cannot conceive that A would have testified that he would not believe his sister on her oath after he had so strongly corroborated her sworn evidence. The appellant’s case in this respect is purely speculative.
It was open to both the prosecution and the appellant to subpoena A on the appeal so that his belief about the credibility of S’ oath could be ascertained. Neither party did so. I accept that there may be good reasons, albeit very different ones, for their forensic choices. However, that leaves this Court in the position of having to decide whether there has been a substantial miscarriage of justice on what is known from the evidence at trial.
On that evidence I am satisfied that allowing the appellant’s counsel to ask A whether he would believe S on her oath would not have elicited a favourable response and that the Judge’s refusal to do so did not result in a substantial miscarriage of justice.
If I had reached the opposite conclusion I would have agreed with Blue J that the Director of Public Prosecutions’ other contentions on the application of the proviso should be rejected.
I would dismiss the appeal.
WHITE J: I agree with the orders proposed by Blue J.
His Honour’s reasons indicate that a review of the rule described by him as the “oath-belief rule” may be appropriate. However, given the recognition and endorsement of the rule by intermediate courts of appeal in this country over the last 50 years, a determination of its continued operation is a matter for the High Court and not this Court.
I agree otherwise with the reasons of Blue J for allowing the appeal.
BLUE J:
This is an appeal against conviction by the defendant. The defendant was convicted by a jury in the District Court of one count of gross indecency,[2] three counts of unlawful sexual intercourse[3] and one count of incest.[4] The acts were alleged to have been performed on the defendant’s daughter S.
[2]    Criminal Law Consolidation Act 1935 (SA) s 58(1).
[3]    Criminal Law Consolidation Act 1935 (SA) s 49(3).
[4]    Criminal Law Consolidation Act 1935 (SA) s 72.
The principal witnesses for the prosecution were S, her mother M (the defendant’s former wife) and her brother A (the defendant’s son).
During cross-examination of the witness A, counsel for the defendant asked:
QKnowing [S] as well as you do, do you regard her as a person who should be believed before this jury?
The trial Judge upheld the prosecutor’s objection to that question.
Counsel for the defendant later asked A whether he had participated in a Facebook conversation with S and M on 18 September 2011. A initially said that he could not remember it and then, when a specific statement was put to him, he said that he did remember saying it. Further statements were put to him, which he did not recall but also did not deny. When a further statement was put to him which he did deny, counsel for the defendant asked:
Q Would you like to have a look at these documents and see if you recognise them.
The Judge upheld the prosecutor’s objection to the defendant’s counsel placing that document before the witness A.
The defendant appeals on one ground and seeks permission to amend to appeal on a second ground, namely:
1. the Judge erred in law in precluding counsel for the defence from a line of questioning of a prosecution witness regarding the character of the complainant consistent with the decision in R v Richardson;[5]
2. the Judge erred in law in precluding counsel for the defence from putting a document [the purported Facebook pages] before the same prosecution witness relevant to the issue of the credit of the complainant.
[5] [1969] 1 QB 299 at 304-305.
This Court reserved the question of permission to amend and heard substantive argument on both grounds.
Background
The prosecution case at trial depended upon acceptance by the jury of the evidence of S. S gave evidence that in 2004, when she was 14, the defendant called her into his bedroom and told her to take off her pyjamas. This was the subject of the gross indecency count. S gave evidence that, a few weeks later, the defendant began inserting his finger into her vagina about twice a week. Two occasions were the subject of counts 2 and 3 alleging unlawful sexual intercourse. The other acts were uncharged.
S gave evidence that in 2005 the defendant commenced penile penetration, which continued until March 2008. The first and last occasions were the subject of count 4, unlawful sexual intercourse, and count 5, incest (by which time S had turned 17). The remaining acts were uncharged acts.
A and M gave evidence under section 34M of the Evidence Act 1929 (SA) of complaint by S. M gave evidence of one complaint in 2004 (of the defendant telling S to take off her clothes) and another complaint in March 2008 (that the defendant had been having sex with her since she was 14). A gave evidence that in about 2006 S told him that the defendant was “doing stuff to her”.
A also gave evidence that, from time to time, he heard a knocking on the wall from his father’s bedroom and he heard S crying in her bedroom. The prosecution relied upon this evidence as corroboration of S’s evidence of sexual abuse.
In the course of cross-examination, counsel for the defendant asked A:
QKnowing [S] as well as you do, do you regard her as a person who should be believed before this jury?
The prosecutor objected. During argument on the objection, by way of explanation for the line of questioning, counsel for the defendant tendered on the voir dire a one page document signed by A which was generally supportive of the defendant. It included the following passages:
My sister [S] she has been a lie since 12 years old. I [A] say that my sister [S] is a liar. She has always lied to get wat she wants. It is hard to say, but she is.
Counsel for the defendant argued that his question was justified by the propositions stated in R v Richardson.[6]The prosecutor did not accept that those propositions are still good law in South Australia. Alternatively, she contended that the question itself was objectionable because no foundation had been laid as to the source of A’s knowledge from which he could answer the question.
[6] [1969] 1 QB 299 at 304-305.
The Judge upheld the prosecutor’s objection. This ruling is the subject of ground one.
Later in cross-examination, counsel for the defendant asked A whether he had a memory of a Facebook conversation on 18 September 2011 in which he participated. A initially said that he did not remember and then recalled making a specific statement when it was put to him. When, after further questions, counsel asked A if he would like to look at a document, the prosecutor objected.
During argument on the objection, counsel for the defendant tendered on the voir dire three pages which purported to be an extract from Facebook. One of the passages purported to be a statement by A to his sister S as follows:
uv lied all ur 21 years of ur life I do not no who to belive anymore so I’m going to say no more.
The prosecutor contended that the provenance of the three pages had not been established. She sought an assurance from the defendant’s counsel that he was in a position to prove the provenance of the three pages. Counsel for the defendant responded that he did not know the provenance beyond having received the three pages from the defendant's mother and beyond the inferences which could be drawn from their appearance. He had not made any further enquiries.
The Judge ruled that the three pages could not be put to A. This ruling is the subject of proposed ground two. The defendant explicitly accepted on appeal that ground two is subsidiary to ground one.
The continuing existence of the oath-belief rule
The defendant’s grounds of appeal rely upon an ancient rule of evidence as formulated by the English Court of Appeal in R v Richardson[7] (“the oath-belief rule”) as follows:
1.     A witness may be asked whether he has knowledge of the impugned witness’s      general reputation for veracity and whether (from such knowledge) he would       believe the impugned witness’s sworn testimony.
2.     The witness called to impeach the credibility of a previous witness may also express opinion (based upon his personal knowledge) as to whether the latter is to    be believed upon his oath and is not confined to giving evidence merely of general reputation.
3.     But whether his opinion as to the impugned witness’s credibility be based simply     upon the latter’s general reputation for veracity or upon his personal knowledge,     the witness cannot be permitted to indicate during his examination in chief the particular facts, circumstances or incidents which formed the basis of his opinion,     although he may be cross-examined as to them.[8]
[7] [1969] 1 QB 299 per Edmund Davies LJ, (Widgery and Lyell JJ agreeing).
[8] [1969] 1 QB 299 at 304-305.
The rule is not confined to attempts by a defendant to impugn the credit of a prosecution witness, but applies equally to attempts by the prosecution to impugn a defence witness and to attempts by plaintiffs and defendants in civil proceedings to impugn the credit of witnesses called by the opponent.[9]
[9] See R v Gunewardene [1951] 2 KB 600 at 606 per Lord Goddard CJ (Lynskey and Devlin JJ agreeing) cited extensively by the Court of Appeal in Richardson.
The rule permits a witness to be asked and to express an opinion whether the impugned witness should be believed upon his or her oath. That opinion can be based upon the witness’s personal knowledge or general reputation. The witness cannot give any evidence of the underlying facts which form the basis of his or her opinion.[10] Nor can the witness give evidence of specific lies or other incidents to impugn the credit of the impugned witness.
[10] Although the opponent may cross-examine as to such facts as part of challenging the witness’s opinion.
In Richardson, the English Court of Appeal described the rule as “ancient” and said that it was “little known” and “used with exceeding rarity”.[11]
[11] [1969] 1 QB 299 at 304 and 305 per Edmund Davies LJ (Widgery and Lyell JJ agreeing).
The defendant contends that this ancient common law rule of evidence continues to exist into the twenty first century and that the Judge’s two rulings were contrary to the rule. The Director contends that the rule is inconsistent with fundamental principles of the modern law of evidence, is an anachronistic relic of the ancient law of evidence and should be declared no longer to exist at common law.
Evolution of the law of evidence
Before turning to consider the opposing contentions of the defendant and the Director, it is desirable to consider the context of the rule in the law of evidence generally. It appears that the oath-belief rule originated in or arose out of the context of the ancient law of evidence as it existed in England a millennium ago.
The Dark Ages to the 13^th Century
In the Dark Ages, the forms of “trial” for civil and criminal disputes were ordeal and compurgation.[12] They were derived from the Barbarian tribes who overran the Roman Empire.[13]
[12] JF Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pg 70; WS Holdsworth, A History of English Law (Methuen & Co Ltd, 5th ed, 1931) Vol 1, pg 299-312.
[13] Holdsworth, A History of English Law (Methuen & Co Ltd, 5th ed, 1931) Vol 1, pg 305.
The first step in the procedure was accusation. Accusations were generally made by a private accuser (the modern complainant), although they were sometimes made by non-professional officials (depending on the nature of the matter and the jurisdiction).[14] The accuser initiated the proceeding by swearing an oath that he or she believed the defendant to be guilty. The belief did not need to be of personal knowledge and could be based on hearsay. The fact of swearing belief of guilt was the important thing as opposed to giving evidence of specific facts. The defendant was required to swear an oath that he or she was not guilty in order to defend the proceedings.[15]
[14] Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pp 64-70; Holdsworth, A History of English of English Law (Methuen & Co Ltd, 5^th ed, 1931) Vol ,1 pp 299-302.
[15] Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pp 68-70; Holdsworth, A History of English Law (Methuen & Co Ltd, 5^th ed, 1931) Vol 1, pp 299-302.

Trial by ordeal involved testing the defendant by enduring an ordeal such as holding a red hot iron for a fixed time. If the defendant endured the ordeal, he or she was successful, otherwise he or she failed. The rationale for trial by ordeal was that God (or deities) would intervene to determine the question at issue.[16]
[16] Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pp 73-74; Holdsworth, A History of English Law (Methuen & Co Ltd, 5th ed, 1931) Vol 1, pp 310-311.
Trial by compurgation (or wager of law) was heavily focussed on the oath as oath. A defendant was only entitled to trial by compurgation (as opposed to ordeal) if he or she first established good character, ie that he or she was “oath-worthy”. To be oath-worthy, he or she had to obtain oaths from sureties that he or she had not failed in ordeal or oath over a certain period. If this could not be obtained, the accused was required to undergo trial by ordeal.[17]
[17] Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pp 70-73.
Compurgators were persons who swore on oath that their principal was innocent, ie that they believed in the truth of their principal’s assertions. They were not required to be eye witnesses and their oath had to be in precise form. If the defendant secured sufficient satisfactory compurgators, the defendant succeeded. Otherwise, the defendant either failed or was relegated to trial by ordeal.[18]
[18] Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) pp 70-73; Holdsworth A, A History of English Law (Methuen & Co Ltd, 5th ed, 1931) Vol 1, pp 305-308.
Stephen describes the system as follows:
Each court had jurisdiction in both civil and criminal cases. On the criminal side the court was called the Sherriff’s tourn (or circuit).
…
The procedure itself appears to have consisted of accusation and trial.
Accusation might be made either by the committee mentioned above, who possibly may have been the predecessors of the grand juries of later times, or by the four men and the reeve of the township, or lastly by a private accuser.
… Several forms of the oaths of accusation taken by individual accusers are still preserved, which implies that private accusations were common:- “by the Lord … I my suit prosecute with full folk right … By the Lord I accuse not N either for hatred, or for envy, or for any unlawful lust of gain; nor know I anything so other, but as my informant to me said, and I myself in sooth believe that he was the thief of my property”.
…
The accused person denied in general terms and upon oath what was imputed to him. His oath was:- “by the Lord I am guiltless, both in deed and counsel of the charge of which N accuses me”. This being done, the question of his guilt was to be decided, according to the character of the accused, by the lad, ie by compurgation, or by ordeal. If he was of good character he was entitled to the lad, or “oath-worthy”. If the lad failed, or in the expressive words of the law, “if the oath burst”, or if he was tiht bysig, ie, a man of bad character, he was obliged to go to the ordeal.
The first question accordingly, at the trial was as to his character, which was decided by the system of borhs or sureties …
The accused then being “led to the plea” by his borh, the borh had to swear that the accused had not been convicted since a certain period. The oath to be taken under Ethelred’s law was “that he had not failed neither in oath nor ordeal since the gemot was at Bromdun.”… Under each of these laws the oath was to be made not only by the Lord of the accused (if he had one), but by “two true thanes of the hundred or the reeve” …
… if the oath succeeded the accused was acquitted. If it failed or “burst”, that is, if the witnesses could not be found, or would not swear, of if the accused was a man of bad character, he had to go the triple ordeal.[19]
[19] Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pp 67-68, 70, 71, 72, 73.
Holdsworth describes the system as follows:
In modern times we understand by a trial a process of reasoning from evidence by means of which the truth as to the facts in issue elicited. There were no such trials as this in ancient law … In fact the parties tried their own cases by processes such as compurgation, ordeal, or battle. The parties themselves, or the courts selected the process by which the proof or the defence must be made. This selection by the court has been called the “medial judgment.”
…
The first step was the statement by the plaintiff of his claims; and, before the proceedings could go any further, there must be more than the plaintiff’s mere word. He must produce a secta – a body of witnesses who testified, not to the facts in issue, but to the genuineness of the plaintiff’s cause of complaint. They were generally friends and dependants of the plaintiff, and their word was no proof of his case. It merely raised a slight presumption in his favour which the defendant could meet by compurgation. … Magna Carta provided that “no bailiff should for the future put any man to his law on the bare assertion of any person, unless the assertion was backed by trustworthy witnesses produced for this purpose.” The meaning of this clause, as the writer of the Year Book of 1304 explains, was not altogether clear; but the opinion which he favoured was that it meant that a defendant could not be compelled to defend himself by wager of law unless the plaintiff produced a sufficient secta. Probably the clause applied both to civil and criminal cases, and meant that no one could be made to prove his innocence by any of the recognised forms of proof unless there was a sufficient prima facie case made out against him … by the secta of a plaintiff …
When the plaintiff has made his claim and produced his secta, the defendant must make his defence. Both the claim and the defence were made orally; and, in both, the right form must be used with absolute verbal accuracy … The issue, thus defined, was then decided by some one of several alternative methods either chosen by the parties, or awarded by the medial judgment of the court. Final judgment followed as of course the result given the method prescribed. Generally it was the accused or the defendant who must go through the prescribed form to prove that he was not guilty or that he was not liable to the plaintiff.
…
If a defendant on oath and in a set form of words will deny the charge against him, and if he can get a certain number of other persons (compurgators) to back his denial by their oaths, he will win his case. If he cannot get the required number, or they do not swear on proper form, “the oath bursts”, and he will lose.
According to the older formulas the compurgators took the same oath as their principal … but, in the course of the twelfth century, it came to be thought that the compurgators should only be required to swear to their belief in the truth of their principal’s assertions.[20]
(Citations omitted)
[20] Holdsworth, A History of English Law (Metheun & Co Ltd, 5th ed, 1931) Vol 1, pp 299-300, 301, 305.
After the Norman Conquest, two additional forms of trial were introduced: trial by battle and trial by witnesses. Trial by witnesses was not far removed from trial by compurgation. Holdsworth describes trial by witnesses as follows:
Trial by witnesses has a modern sound; but such a trial meant in the twelfth century something very different from the trials of modern law. These witnesses were analogous, not to our modern witnesses, but to the secta. They were persons produced by plaintiff or defendant to swear to a belief in his tale. “There was no testing by cross-examination; the operative thing was the oath itself, and not the probative quality of what was said, or its persuasion on the Judge’s mind” (Thayer, Evidence 17). The plaintiff told his tale and produced a secta to support it. Then the defendant put forward his defence and a body of witnesses to support it. According as the court considered the one or other secta to be more credible, so the case was decided. But, it would seem, that the credibility of the plaintiff’s and defendant’s bands of witnesses was decided in primitive times and much later, not by the nature of their testimony, but simply by looking to see if they all told the same tale and by counting their heads.
Thus these bands of witnesses were treated as formal tests. Their testimony was not weighed, but, provided they told a consistent tale, their numbers were balanced one against the another, and the party whose band of witnesses was the more numerous won.[21]
(Citations omitted)
[21] Holdsworth, A History of English Law (Methuen & Co Ltd, 5th ed, 1931) Vol 1, pp 302, 303.
This system placed emphasis upon the oaths of the witnesses for and against the defendant. What was important was whether the witnesses believed the defendant to be guilty or innocent rather than their having been eye witnesses to the relevant facts. The importance of the oath per se, as opposed to evidence of the facts in issue, transcended all stages of the process, from the initial accusation and entitlement to defend through to determining whether the defendant was oath-worthy and to the determination of guilt or innocence at trial.
The corollary of the emphasis on the oath per se was that other witnesses could be called to impeach the oath or character of a witness. Witnesses were also permitted to give evidence that other witnesses should not be believed on oath, whether based on personal knowledge or reputation. Witnesses were permitted to give evidence of the other witnesses’ general bad character, and specific acts demonstrating bad character of another witness. These latter types of evidence were permitted into the late eighteenth century.[22] There was no such thing as the credit rule, the hearsay rule or the opinion rule.
Thirteenth to seventeenth centuries
[22] JH Wigmore, A Treatise on the System of Evidence in Trials at Common Law (Little, Brown and Co, 1904) Vol 2, [922], [923] and [979].
The concept of a jury for other purposes was introduced to England by the Norman Conquest, but trial by jury did not occur until the reign of Henry II (1154-1189). Jurors were drawn from the local neighbourhood and decided questions of fact by reference to what they already knew or had heard informally. Decisions by juries were made in a similar manner to trial by compurgation and trial by witnesses with the principal emphasis upon the parties’ character as opposed to the determination of disputed factual issues in the modern sense.[23]
[23] Holdsworth, A History of English Law (Methuen & Co Ltd, 5^th ed,1931) Vol 1, pp 312-350.
Holdsworth describes the system in the thirteenth to seventeenth centuries as follows:
As Maitland says, the jury, when first it makes its appearance in England, is, in essence, “a body of neighbours summoned by some public officer to give, upon oath, a true answer to some question” … The jury was a body of neighbours called in, either by express law, or by the consent of the parties, to decide disputed questions of fact. The decision upon questions of fact was left to them because they were already acquainted with them, or if not already so acquainted with them, because they might easily acquire the relevant knowledge. For this reason it has been said that the primitive jury were witnesses to rather than judges of the facts. They were in a sense witnesses. But they were more than witnesses. They were a method of proof which the parties were either obliged or had agreed to accept …
At the end of the twelfth century a person appealed, ie accused of crime by a private person, could get by payment the right to be tried by a jury. His strict right was to prove his innocence by one of the orthodox ways – by battle, compurgation, or ordeal. Similarly, if a person was presented by a grand jury as suspected he must clear himself either by compurgation or ordeal – not by battle because there could be no battle when the Crown was the accuser. It would seem that in the twelfth century the presenting jurors, together with other persons sometime taken from the four neighbouring townships, decided as to the mode of proof by which the accused must clear himself …
… How the jury might inform themselves was not in the thirteenth century defined. … Bracton and Britton consider that the jury should take the best means they can to get at the truth, and talk it over among themselves. If they were still ignorant they might be afforced by those who knew better … juries were summoned from persons likely to know. … Such juries are perhaps the ancestors both of the modern special jury and the modern expert witness. They partake of character of both. … That juries could still decide of their own knowledge in the seventeenth century was stated in a proclamation for jurors, drawn by Bacon and issued in 1607; in 1670 it was made use of by Vaughan, CJ in Bushell’s Case to prove that jurors could not be fined for finding a verdict contrary to the direction of the court … How a jury came by its knowledge was not originally a matter with which the law concerned itself … it was perfectly clear that verdicts were not as a rule founded on firsthand knowledge …
It is not till the sixteenth century that the practice of relying upon the sworn testimony of witnesses became general. One reason for this was the fact that such evidence was usually of the most untrustworthy description. As Mr Bolland has said, “the origination and prosecution of suits that were based upon purely invented facts and supported by evidence that was wholly deliberate perjury seems to have ranked almost as a recognized profession”... the jurors were expected to make their own inquiries …[24]
Though the direct influence of the rule requiring more than a single witness has been small, the ideas which underlay it have had a certain amount of indirect influence in different directions. Firstly, though the rejection of the rule caused the court to pay more attention to the weight of a witness’s evidence, we shall see that juries still continue for a long period to attach much weight to an oath merely as an oath. Even the judges in the latter part of the seventeenth century made very few attempts in criminal cases to weigh the evidence.[25]
(Citations omitted)
[24] Holdsworth, A History of English Law (Methuen & Co, 5^th ed, 1931) Vol 1, pp 312, 323, 333, 334 and 335.
[25] Holdsworth, A History of English Law (Methuen & Co, 5th ed, 1931) Vol 9, pg 208.
Speaking of the second half of the seventeenth century, Holdsworth says:
Let us look at one or two of the results of the existing rules of procedure, and of the absence of any fixed rules of evidence.
…
Secondly, “there was a utter absence of any conception of the true nature of judicial evidence on the part of the Judges, the counsel, and the prisoners.”[26]
…
“… the opinion of the time seems to have been that if a man came and swore to anything whatever, he ought to be believed, unless he was directly contradicted.[27]
… there was no idea of weighing the credit of a witness. His competency could be and was sometimes objected to; but, if he was competent, the court still adhered to the very primitive idea that his oath had, as a rule, “a mechanical value”, which entitled it to be believed unless it was contradicted.[28]
[26] Holdsworth, A History of English Law (Methuen & Co, 5th ed, 1931) Vol 9, pg 232. Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pg 399.
[27] Ibid.
[28] Holdsworth, A History of English of Law (Methuen & Co, 5^th ed, 1931) Vol 9, pg 233.
In this period, what continued to be important was the fact that evidence was given on oath. Holdsworth describes the attitude to the oath as follows:
the theory of the precise nature of the sanction of the oath has varied. “The theory of the oath, in modern common law may be termed a subjective one, in contrast of the earlier one, which may be termed objective. The oath is not a summoning of Divine vengeance upon false swearing, whereby, when the spectators see the witness standing unharmed, they know that the Divine judgment has pronounced him to be a truth teller; but a method of reminding the witness strongly of the Divine punishment somewhere in store for false swearing, and thus of putting him in a frame of mind calculated to speak only the truth as he saw it”. The earlier view was well to the fore in the seventeenth, but the later view had practically prevailed by the beginning of the 19^th century. [29]
[29] Holdsworth A History of English of Law (Methuen & Co, 5th ed, 1931); citing JH Wigmore, A Treatise on the System of Evidence in Trials at Common Law (Little Brown, & Co, 1904) Vol 3, [1816].
Holdsworth describes the role of witnesses in this era as follows:
In the twelfth and thirteenth centuries the canon law was developing a number of detailed rules as to the classes of person whom it accounted incompetent to be witnesses; and it was almost inevitable that many of these causes of incompetency should be applied to jurors … thus, “canon law rejected the testimony of … those convicted of crime … , of persons connected with either party by consanguinity and affinity, or belonging to the household of either party, of the enemies of either party” … Bracton tells us that jurors can be challenged because they are infamous, that is if, on account of a conviction for perjury, they have “lost their law”; because they are friends or enemies of the parties … because they are related to the parties by ties of consanguinity or affinity, or are in fact treated as one of the family of either of the parties … But the fact that some of these rules, primarily applicable to witnesses, had been thus acclimatised, naturally led the lawyers of the fifteenth and sixteenth centuries to apply certain of them to the new class of witnesses who were then beginning to appear in the courts.
This rule that more than one witness was needed to prove the truth of a matter in issue, also assorted well with some very primitive notions as to the nature of the probative force of the testimony of witnesses. That probative force was attached, not so much to the matter to which they testified under the sanction of an oath, as to the act of swearing to the truth of a fact under the prescribed forms. We have seen that the proofs by compurgation and by witnesses both illustrate this point of view. The law paid hardly any attention to the matter sworn to, provided it was sworn to in the proper form. It concentrated its attention on the fact that a number of persons had sworn to the fact in that form. [30]
Eighteenth to twentieth centuries
[30] Holdsworth, A History of English Law (Methuen & Co, 5th ed, 1931) Vol 9, pp 185-186.
Up to the late eighteenth century, there was no rule excluding evidence of specific acts impeaching the credit of a witness. During the course of the eighteenth century, this was increasingly discouraged by the courts and by the beginning of the nineteenth century it was held to be inadmissible.[31]
[31] Wigmore, A Treatise on the System of Evidence in Trials at Common Law (Little, Brown & Co, 1904) Vol 2 [922], [923], [979], [986]; Vol 3 [1982].
Up to the seventeenth century, there was no rule excluding hearsay. The hearsay rule began to appear between 1675 and 1690 and was not firmly established until the nineteenth century.[32]
[32] Wigmore, A Treatise on the System of Evidence in Trials at Common Law (Little Brown & Co, 1904) Vol 2 [1364]; Heydon, Cross on Evidence (Lexis Nexis Butterworths, 8th ed, 2010) [31015].
Up to the eighteenth century, there was no rule excluding evidence by a witness of an opinion or conclusion, as opposed to matters perceived via the senses. Towards the end of the eighteenth century, evidence of a mere opinion or conclusion began to be regarded as inadmissible and this became an established rule by the first half of the nineteenth century.[33]
The modern issue/credit rule
[33] Wigmore, A Treatise on the System of Evidence in Trials at Common Law (Little, Brown & Co, 1904) Vol 3 [1917]-[1925], Vol 1 [658].

The modern law of evidence draws a distinction between questions and evidence which are relevant to a matter in issue in the case and those which are relevant only to the credit of a witness in the case.
As to the evidence relevant to matters in issue:
The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.[34]
There are exceptions to the general principle that evidence which is relevant to a fact in issue is admissible (“the issue rule”), including the hearsay rule and the opinion rule.
[34] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 at [2] per Gleeson CJ (see also at [31] per McHugh J to similar effect). See also Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 at [6]-[7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
As to evidence relevant to the credit of a witness, the general rule is that no evidence may be adduced by questioning another witness, tendering a document or otherwise to prove a fact which is relevant only to the credit of another witness (“a collateral fact”).[35] This rule (“the credit rule”) does not prevent cross-examination of the impugned witness as to credit, but binds a cross-examiner to the answer of the witness if it goes only to credit.[36]
[35] Goldsmith v Sandilands (2002) 76 ALJR 1024 at [3] per Gleeson CJ, [17] and [32] per McHugh J, [70] per Kirby J, [82]-[83] per Hayne J and [95] per Callinan J; Nichols v The Queen [2005] HCA 1; (2005) 219 CLR 196 at [37]-[38] per McHugh J, [167]-[168] per Gummow and Callinan JJ, [202] per Kirby J and [248]-[249] per Hayne and Heydon JJ (Gleeson CJ at [1]).
[36] R v Cargill [1913] 2 KB 271 at 274 per Channell, Bray and Lord Coleridge JJ.
The rationale of the credit rule includes avoiding a multiplicity of issues, fairness to the impugned witness and the perceived limited probative value of such evidence.[37]
[37] Attorney-General v Hitchcock (1847) 1 Exch 91 at [103]-[104] (154 ER 38) per Alderson B; Harris v Tippet (1811) 2 Camp 637 (170 ER 1277) at [638] per Lawrence J; Toohey v Metropolitan Police Commissioner [1965] AC 595 at 607 per Lord Pearce (Lords Reid, Morris, Hodson and Donovan agreeing).
There are recognised exceptions to the credit rule. The exceptions include evidence that the witness suffers from a mental disorder impairing the witness’s ability to give reliable evidence[38] and that the witness is partial due to bias, interest or corruption.[39]
[38] Toohey v Metropolitan Police Commissioner [1965] AC 595 at 609 per Lord Pearce (Lords Reid, Morris, Hobson and Donovan agreing).
[39] Nichols v The Queen (2005) 219 CLR 196 at [61]-[62] per McHugh J, [173]-[175] per Gummow and Callinan JJ, [205]-[206] per Kirby J and [262] per Hayne and Heydon JJ (Gleeson CJ at [1]).
It has been held by intermediate appellate courts in the Federal Court and in New South Wales, Queensland and Victoria that the exclusionary aspect of the credit rule is not absolute. A residual discretion exists (outside recognised exceptions) to admit evidence relevant only to credit of another witness if it is sufficiently probative or in the interests of justice.[40]
[40] Natta v Canham (1991) 32 FCR 282 at 298 and 300 per French, O’Loughlin and Higgins JJ; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 477-478 per Clarke JA (Mahoney and Meagher JJA agreeing); R v Lawrence [2001] QCA 441; (2001) 124 A Crim R 83 at [10]-[14] per McPherson JA and [44]-[45] and [54] per White J; R v FTG [2007] VSCA 109; (2007) 15 VR 685 at [73]-[76] per Vincent and Redlich JJA and Habersberger AJA.
In Goldsmith v Sandilands,[41] McHugh J and Kirby J, and to some extent Callinan J, regarded the rule in its exclusionary aspect as being flexible.[42] In Nicholls v The Queen,[43] McHugh J adhered to that view.[44] Gleeson CJ regarded the credit rule as a rule rather than a guide.[45] Gummow and Callinan JJ did not express an opinion on the question, although they observed that strict application of the rule can lead to injustice.[46] Hayne and Heydon JJ accepted that opinions differ about how far it is legitimate to approach the problem emphasising the importance of flexibility against rigidity, convenience against principle, and case management rather than rigid rules. However, their Honours held that it was not necessary to answer those questions to decide the appeal.[47] Kirby J also found it unnecessary to decide the question.[48]
[41] (2002) 76 ALJR 1024.
[42] (2002) 76 ALJR 1024 at [38]-[39] per McHugh J, [70] per Kirby J and [103] per Callinan J.
[43] [2005] HCA 1; (2005) 219 CLR 196.
[44] (2005) 219 CLR 196 at [44]-[56].
[45] (2005) 219 CLR 196 at [2].
[46] (2005) 219 CLR 196 at [168]: See [168]-[172].
[47] (2005) 219 CLR 196 at [285]: See [285]-[289] generally.
[48] (2005) 219 CLR 196 at [202]-[207].
As the High Court has not decided the question, the present weight of authority at intermediate court of appeal level is that evidence relevant only to credit, falling outside the recognised exceptions, might be admissible where it has strong probative value and is important in the case, which itself is likely to be only in an exceptional case. Under the Uniform Evidence Acts, a court is given a discretion to give leave to adduce evidence relevant to a witness’s credibility provided that the matter has been put to that witness in cross-examination.[49] Unless and until the High Court decides otherwise, the common law position appears to be similar to the Uniform Evidence Acts.
The modern hearsay and opinion rules
[49] Evidence Act 1995 (Cth) s 106(1)(b); Evidence Act 1995 (NSW) s 106(1)(b); Evidence Act 2008 (Vic) s 106(1)(b); Evidence Act 2001 (Tas) s 106(1)(b).
In general, hearsay evidence is inadmissible.[50] The rationale for this rule includes unreliability, the statement recounted to the court not being on oath and the statement not being subject to cross-examination.[51] There are several exceptions to the hearsay rule, but they only apply when the circumstances are such that the risks and prejudices to the opponent of hearsay evidence are perceived to be ameliorated.[52]
[50] Heydon, Cross on Evidence, (Lexis Nexis Butterworths, 8^th ed, 2010) [31010].
[51] Heydon, Cross on Evidence, (Lexis Nexis Butterworths, 8^th ed, 2010) [31020].
[52] Heydon, Cross on Evidence, (Lexis Nexis Butterworths, 8^th ed, 2010) [33001]-[33775].
In general, a non-expert witness is not permitted to express an opinion or conclusion based on primary facts but is required to confine his or her evidence to primary facts observed by him or her.[53] The rationale for this rule is that it is a matter for the court to draw conclusions and make findings and it is for witnesses to give evidence only of primary facts seen or heard.[54]
[53] Heydon, Cross on Evidence, (Lexis Nexis Butterworths, 8^th ed, 2010) [1255] and [29005].
[54] Heydon, Cross on Evidence, (Lexis Nexis Butterworths, 8^th ed, 2010) [29135].
The contentions of the Director
The Director contends that the oath-belief rule is inconsistent with two fundamental principles of the modern law of evidence, namely the opinion rule and the hearsay rule.
Since the evolution of the credit rule, the oath-belief rule has been regarded as a specific exception to the credit rule.[55] The Director contends that the oath-belief rule is anomalous in the modern law of evidence and ought no longer to be recognised as an exception to the credit rule. It is contended that the rule is inconsistent with the opinion rule because the witness is permitted to express a conclusion and is not permitted to give evidence of the facts upon which the conclusion is based. It is contended that the rule is inconsistent with the hearsay rule because a witness is permitted to give evidence of another witness’s reputation which entails reliance upon what the witness has been told by others, which itself might not be first hand.
[55] Heydon, Cross on Evidence, (Lexis Nexis Butterworths, 8^th ed, 2010) [19045].
Statutes which have codified the law of evidence in other jurisdictions in Australia provide that evidence which is relevant only because it affects the credibility of a witness is not admissible.[56] There are exceptions to this credibility rule, including those which permit cross-examination of the witness in question as to credibility or adducing evidence by leave of the Court,[57] but the exceptions do not permit the adducing of evidence of an opinion by one witness that another witness is not to be believed on his or her oath.[58]
[56] Evidence Act 1965 (Cth) ss 101A and 102; Evidence Act 1995 (NSW) ss 101A and 102; Evidence Act 2008 (Vic) ss 101A and 102; Evidence Act 2001 (Tas) ss 101A and 102.
[57] See, for example, Evidence Act 1995 (Cth) ss 103 and 106.
[58] The influence of the Uniform Evidence Acts on the development of the common law has been seen in relation to legal professional privilege. The High Court held that the common law in Australia should change from the sole purpose test to the dominant purpose test. The latter is contained in the Uniform Evidence Acts. See Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [4]-[6], [53] and [56] per Gleeson CJ, Gaudron and Gummow JJ.
The Director contends that the common law can be developed when the foundation for a given rule no longer exists. In PGA v The Queen[59] French CJ, Gummow, Hayne, Crennan and Kiefel JJ, addressed the development of the common law. They said:
[59] [2012] HCA 21; (2012) 245 CLR 355.
… the term “common law” might be understood not only as a body of law created and defined by the courts in the past, but also as a body of law the content of which, having been declared by the courts at a particular time, might be developed thereafter and be declared to be different.
Writing at the time of the establishment of this Court, and when he was Professor of Law at the University of Adelaide, Sir John Salmond said:
“The statement that a precedent gains in authority with age must be read subject to an important qualification … A moderate lapse of time will give added vigour to a precedent, but after a still longer time the opposite effect may be produced, not indeed directly, but indirectly through the accidental conflict of the ancient and perhaps partially forgotten principle with later decisions. Without having been expressly overruled or intentionally departed from, it may become in course of time no longer really consistent with the course of judicial decision. In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all authority and validity. The law becomes animated by a different spirit and assumes a different course, and the older decisions become obsolete and inoperative.”
…
… where the reason or “foundation” of a rule of the common law depends upon another rule which, by reason of statutory intervention or a shift in the case law, is no longer maintained, the first rule has become no more than a legal fiction and is not to be maintained.
…
It is with this reasoning in mind that there is to be understood the earlier statement by Dawson J in R v L that:
“Whatever may have been the position in the past, the institution of marriage in its present form provides no foundation for a presumption which has the effect of denying that consent to intercourse in marriage can, expressly or impliedly, be withdrawn. There being no longer any foundation for the presumption, it becomes nothing more than a fiction which forms no part of the common law.”[60]
(Citations omitted)
[60] (2010) 245 CLR 355 at [23], [24], [30] and [32].
The Director contends that the oath-belief rule had an appropriate place within the ancient law of evidence, but the major precepts of the ancient law of evidence which gave rise to the rule have all now disappeared as the common law of evidence has evolved.
The contentions of the defendant
The defendant does not take issue with the Director’s contentions concerning the inconsistency of the oath-belief rule with the opinion and hearsay rules. However, he contends that the continuing existence of the oath-belief rule has been accepted in a series of intermediate appellate court decisions in England and Australia over the last 60 years and that this Court ought not to depart from those decisions.
The oath-belief rule was accepted by the Court of Appeal in England in Gunewardene[61] and Richardson.[62]In Toohey v Metropolitan Police Commissioner,[63] the House of Lords overruled the decision in Gunewardene to the extent that it was held in that case that expert medical evidence of a mental abnormality of a witness impacting the witness’s ability to give truthful evidence was inadmissible. In the course of his reasons, Lord Pearce (Lords Reid, Morris, Hodson and Donovan agreeing) touched incidentally upon the oath-belief rule. He said:
From olden times it has been the practice to allow evidence of bad reputation to discredit a witness’s testimony. It is perhaps not very logical and not very useful to allow such evidence founded on hearsay. None of your Lordships and none of the counsel before you could remember being concerned in a case where such evidence was called. But the rule has been sanctified through the centuries in legal examinations and text books and in some rare cases, and it does not create injustice.[64]
[61] [1951] 2 KB 600.
[62] [1969] 1 QB 299.
[63] [1965] AC 595.
[64] [1965] AC 595 at 605-606 and 606-607.
Over the last 50 years, intermediate appellate courts in New South Wales,[65] Queensland,[66] the Northern Territory,[67] Victoria[68] and the Federal Court[69] have accepted the continuing existence of the rule.
[65] R v Hanrahan [1967] 2 NSWR 718.
[66] R v Laycock and Stokes [1999] QCA 307; R v Hoben [2000] QCA 384.
[67] R v PDW [2009] NTCCA 10; (2009) 197 ACR 1.
[68] R v BDX [2009] VSCA 28; (2009) 24 VR 288.
[69] Bell v The Queen (1985) 63 ALR 433.
In all but one of these cases, the Crown accepted the continuing existence of the rule such that the approach to intermediate appellate authority mandated by Farah Constructions Pty Ltd v Say-Dee Pty Ltd[70] is not attracted. However, in R v BDX,[71] the continuing existence of the rule was challenged by the Crown. The defendant was charged with incest against his step-daughter. He was convicted and appealed on multiple grounds. One of the grounds of appeal involved the oath-belief rule. Defence counsel for the defendant had put to the complainant in cross-examination that she had made false allegations against her former employer. Counsel sought to call the employer at the trial. The employer gave evidence on the voir dire that the complainant should not be believed on her oath. The trial Judge ruled that the employer could not be asked this question.
[70] [2007] HCA 22; (2007) 230 CLR 89 at [135] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ who stated that intermediate appeal courts should not depart from decisions in intermediate courts in other jurisdictions unless convinced that they are plainly wrong.
[71] [2009] VSCA 28; (2009) 24 VR 288. An enlarged Victorian Court of Criminal Appeal was convened because one of the grounds of appeal challenged the correctness of a recent decision of the Court concerning jury directions on complaint evidence.
On appeal, the Crown contended that the oath-belief rule should no longer be regarded as part of the common law of Australia. Vincent and Weinberg JJA (Nettle and Redlich JJA and Ashley JA agreeing) discussed the English cases including Gunewardene, Toohey and Richardson and said:
It is clear from this discussion of the authorities that the common law rule that a witness can be called to attack the veracity of another witness, though rarely invoked in practice, is alive and well in England.
Before this Court, the Crown submitted that irrespective of the position in England, the rule is no longer to be regarded as part of the common law of Australia. This was a somewhat bold submission given that, in Bell v R, the Full Court of the Federal Court, as recently as 1985, expressly affirmed the continued existence of the rule.[72]
Their Honours addressed R v Hanrahan[73] and an old Victorian case of R v Moloney,[74] and said:
The Crown sought to deal with these authorities by referring to the criticisms that had been levelled at the rule by various commentators. It noted that the Australian Law Reform Commission, in one of its early reports on codification of the law of evidence, appeared to favour its abolition. In addition, the rule has been described as “cumbersome, anomalous and unconvincing” by no less an authority than J D Heydon in Cross on Evidence.
With great respect, so far as this Court is concerned, none of this can possibly matter. If the rule continues to exist as part of the common law, it is irrelevant that it has its critics. The appellant was entitled to be tried according to law. That is the law as it stands, not as some think it ought to be. Whether Ms Zubrycki’s evidence had it been led, would have influenced the jury to reject the complainant’s account can never be known. However, in our view, the trial Judge erred in excluding it.[75]
[72] (2009) 24 VR 288 at [41]-[42].
[73] [1967] 2 NSWLR 718.
[74] (1888) 14 VLR 934.
[75] (2009) 24 VR 288 at [45]-[46].
The continuing existence of the oath-belief rule as part of the common law of Australia has not arisen for decision in the High Court. However, in a number of cases, individual Justices have referred to the rule as one of the exceptions to the credit rule. For example, in Goldsmith v Sandilands,[76] McHugh J referred to the rule and cited Richardson in a footnote when listing exceptions to the credit rule[77] and in Nicholls, Hayne and Heydon JJ referred to “evidence of reputation for untruthfulness” as one of the exception to the credit rule.[78]
[76] (2002) 76 ALJR 1024.
[77] (2002) 76 ALJR 1024 at [35].
[78] (2005) 219 CLR 196 at [248].
Consideration
At the level of principle, there is considerable force in the Director’s submissions. It is difficult to justify, in the context of the modern law of evidence, the continuing subsistence of the rule. It is difficult to reconcile the existence of the rule with the opinion rule and the hearsay rule. The approach of the Uniform Evidence Acts, which do not permit a witness to be asked, either as a matter of bald personal opinion or hearsay reputation, whether another witness should be believed upon their oath, suggests that the oath-belief rule would not be incorporated in the modern law of evidence if the matter were approached afresh today.[79] In a trial before a jury, admission of conclusionary and hearsay evidence under the rule may well confuse the jury in those cases in which the jury is directed that other instances of hearsay are not evidence of the truth of the facts asserted and other conclusions have no weight absent identification and establishment of the underlying facts giving rise to the conclusion.
[79] Although the law of evidence would not necessarily prevent the adducing of evidence of specific conduct by another witness relevant to the credit of that witness if it was of strong probative value: see [60] above.
The defendant does not seek to justify the continuing existence of the rule by reference to contemporary principles, but rather relies upon the existence of the authorities referred to above which he contends preclude this Court from denying its continuing existence.
If the matter were approached solely by reference to the principles of the modern law of evidence, there would be much to be said in favour of the inadmissibility of one witness being asked to express a bald opinion, based either on general reputation or personal knowledge, as to whether another witness should be believed upon his or her oath. By contrast, while there are good reasons for the general principle that evidence cannot be adduced from one witness of specific acts or conduct of another witness relevant only to the credit of that other witness, there are also good reasons to permit a discretionary exception to that principle where the credit of that other witness is particularly important to the case and the evidence of the first witness is particularly probative as to the second witness’s credit, in accordance with the decisions of other intermediate courts of appeal referred to at [58] above.

Nonetheless, given the state of authority in Australia, it is not open to this Court, as an intermediate appellate court, to hold that the oath-belief rule no longer forms part of the common law of Australia. That is a matter which can only be addressed by the High Court.
Accordingly, this Court is obliged to hold that the oath-belief rule is still part of the common law of Australia.
Other contentions by the Director
The Director makes four alternative contentions in respect of ground one.
The first contention is that, if the oath-belief rule continues to exist, counsel’s question was not justified by the rule.
Counsel’s question was:
Knowing [S] as well as you do, do you regard her as a person who should be believed before this jury.
The Director contends that, before asking such a question, it was necessary for the defendant’s counsel to lay a foundation by establishing that A was aware of S’s general reputation as to whether she should be believed on her oath. The Director refers to the formulation of the rule by the Court of Appeal in Richardson.[80]The Director contends that, as formulated, the primary rule is that the witness must have knowledge of the impugned witness’s general reputation and that this is the necessary foundation for the question:
1. whether he or she would believe the impugned witness’s sworn testimony based on that general reputation (proposition one): or
2. whether he or she would believe the impugned witness’s sworn testimony based upon his or her own personal knowledge (proposition two).
[80] [1969] 1 QB 299 as set out at [29] above.
The expression of the oath-belief rule by the Court of Appeal in Richardson is ambiguous. The fact that the Court used the word “also” and placed the second limb after the first limb might be read as suggesting that the question under the second limb can only be asked if the pre-condition under the first limb is first established, namely that the witness has knowledge of the impugned witness’s general reputation. In support of this construction, the Director points to a different rule which permits an accused to adduce evidence of good character. Under this rule, the evidence must be based upon general reputation as opposed to the personal opinion of the witness testifying to the accused’s good character.[81]
[81] R v Rowton (1865) 34 LJ (MC) 57; R v Johnson & Edwards (No 2) [1982] Qd R 555 at 560 per DM Campbell J (WB Campbell and Sheahan JJ agreeing).
Some confusion arose during the late nineteenth and twentieth centuries as to whether the oath-belief rule permitted evidence of opinion based on general reputation or personal knowledge or both. In Richardson, the Court of Appeal relied upon the earlier decision of the Court of Appeal in Gunewardene,[82] in which the propositions were considered in detail, for the three propositions which it formulated.
[82] [1951] 2 KB 600.
In Gunewardene, the principal issue involved the third proposition as subsequently formulated in Richardson. The Court of Appeal explicitly held that a witness asked to express an opinion on whether the impugned witness should be believed on his or her oath could not give evidence of any underlying facts or circumstances which formed the basis of his or her opinion. The Court also addressed the question whether the opinion was required to be based upon general reputation or personal knowledge. Lord Goddard CJ (Lynskey and Devlin JJ agreeing) referred to what appeared to be conflicting earlier authorities. His Honour referred to R v De La Motte[83] as establishing that a witness was confined to giving evidence as to general reputation and could not state an individual opinion, whereas in R v Rowton[84] it was held that the witness was confined to expressing an individual opinion and could not say what was the general opinion.[85] Lord Goddard concluded that cases after De La Motte had relaxed the rule that the opinion be confined to general reputation and proceeded on the basis that the opinion could be expressed on the basis of either individual knowledge or general reputation.[86]
[83] (1781) 21 St Tr 687.
[84] (1865) 34 LJ (MC) 57.
[85] (1951) 2 KB 600 at 607-608.
[86] [1951] 2 KB 600.
Reference to cases earlier than those cited by the Court of Appeal in Gunewardene indicates that the oath-belief rule originally permitted both forms of question – opinion based on personal knowledge and general reputation – without one form being subservient to the other. For example, in Duke of Norfolk Divorce Suit,[87] a witness gave evidence of opinion about another witness based on personal knowledge. In Lord Chancellor Macclesfield’s trial,[88] a witness gave evidence of opinion based upon general reputation. Wigmore conclusively demonstrates that, in the seventeenth and eighteenth centuries, witnesses were permitted to give evidence of opinion based upon personal knowledge which was not dependent in any way upon general reputation.[89]
[87] (1692) 12 How St Tr 899 at 608, 919.
[88] (1725) 16 How St Tr 1239.
[89] JH Wigmore, A Treatise on the System of Evidence in Trials at Common Law (Little, Brown & Co 1904) Vol 3 [1982].
The fact that there has been some confusion over the last century or so concerning what is permitted by the oath-belief rule is symptomatic that its original rationale has become obscure. However, it is clear that, if the rule continues to exist from ancient times, it does not require that the witness’s opinion be based only on general reputation and not upon personal knowledge. The Director’s first alternative contention should be rejected.
Wording of the question
The Director’s second alternative contention is that, if the oath-belief rule continues to exist, counsel’s question was not permitted by the rule because of the way in which it was phrased.
Counsel’s question was:
Knowing [S] as well as you do, do you regard her as a person who should be believed before this jury.
The Director contends that the question permitted by the rule would have been:
Knowing [S] as well as you do, do you regard her as a person who should be believed on her oath.
(Emphasis added)
The Director contends that the question actually asked related to the specific belief by the jury of the account given by S to the Court; whereas the rule permits only a question as to whether the witness should be believed upon her oath generally.
The form of the question asked was not in accordance with the rule and that specific question was correctly disallowed by the Judge. However, the argument on the objection disclosed that the Judge ruled against defence counsel’s line of questioning rather than the specific form of the question. The Director’s second alternative contention should be rejected.
Section 23 of the Evidence Act
The Director’s third alternative contention is that, if the oath-belief rule continues to exist at common law, it is subject to section 23 of the Evidence Act 1929 (SA).
Section 23 of the Evidence Act provides:
In deciding whether a question affecting the credibility of a witness is relevant, or ought to be allowed, the judge shall have regard to the following considerations:
(a)    such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter on which he testifies;
(b)    such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(c)    such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence.
The Director contends that the expression “the witness” in each of paragraphs (a), (b) and (c) encompasses both the witness being examined and any other witness in the case.
Whereas the chapeau uses the indefinite article in the phrase “a witness”, each of the three paragraphs uses the definite article “the witness”. This suggests that the three paragraphs refer to the witness to whom the chapeau refers. Each of paragraphs (a) and (b) refer to “the credibility of the witness” and correspond directly to the reference in the introductory words to “the credibility of a witness”. Each of paragraphs (a) and (b) refer to the credibility of the witness “on the matter to which he testifies”. This is consistent only with addressing that witness’s credibility and not the credibility of another. Each of paragraphs (a), (b) and (c) refer to “the imputation” conveyed by the question or made against the witness’s character. This suggests that the imputation is against that witness and not another witness.
The evident purpose of the section is to address questions which are offensive to the witness being questioned. Section 23 is one of several sections which address the topic of improper and offensive questions. The surrounding sections address questions which are offensive to the witness himself or herself rather than involving the credit or character of another witness.
It is appropriate to have regard to the Parliamentary Debates to identify the mischief to which the section was addressed and its purpose. In his second reading speech on the introduction of the Evidence Law Amendment Bill 1888 which inserted the equivalent of section 23 into the predecessor of the Evidence Act, Mr Moulden said:
Many questions were put to the witnesses to test their credibility, which were not relevant to the issue … Assuming that a witness was 30 years ago sentenced to transportation … He comes into the witness box to depose to some fact material to the issue and gives his evidence. Would it be tolerant that counsel should ask if 30 years ago he was transported? ... What would follow? The ruin perhaps of the witness, the shame of his friends, and the misery of his family.[90]
[90] South Australia, Parliamentary Debates, House of Assembly, 22 August 1888, pg 702.
The second reading speech confirms that the predecessor of section 23 was addressed to the credibility of the witness being questioned and not to the credibility of another witness. The Director’s third alternative contention should be rejected.
The proviso
The Director’s fourth alternative contention is that, if the Judge erred in disallowing the question, no substantial miscarriage of justice occurred and the appeal should be dismissed.[91]
[91] Criminal Law Consolidation Act 1935 (SA) s 353(1).
The ruling by the Judge disallowing the line of questioning involving whether S should be believed upon her oath comprised a wrong decision on a question of law within the meaning of section 353(1) of the Criminal Law Consolidation Act 1935 (SA). In those circumstances, this Court is obliged to allow the appeal and set aside the verdict of the jury unless satisfied that no substantial miscarriage of justice actually occurred. The onus of persuasion in this respect is upon the Crown.[92]
[92] Quartermaine v The Queen (1980) 143 CLR 595 at 600-601 per Gibbs J (Stephen and Murphy JJ agreeing); Simic v The Queen (1980) 144 CLR 319 at 327 per Gibbs, Stephen, Mason, Murphy and Wilson JJ.
The Director puts his contention at three levels. At the first level, the Director contends that the defendant placed nothing before this Court to lead to the conclusion that the oath-belief question would have been answered in the negative, ie, that A would have said that he would not believe his sister upon her oath. The Director contends that it is speculative whether the answer to the question would have been favourable to the defendant.
This submission should be rejected. Once consideration reaches the potential application of the proviso, the onus of persuasion lies upon the Crown. A was called by the Crown at trial to give evidence as part of the case against the defendant. He was not in the defendant’s camp. In these circumstances, it was a matter for the Crown to adduce evidence on appeal from A as to his answer to the question rather than the onus lying upon the defendant to do so.
On the available materials, this Court cannot be satisfied that A would have answered the oath-belief question in the affirmative (ie that he would believe S on her oath). A had previously written the document referred to at [22] above in which he said that S was and had always been a liar. A apparently authored the statement in the Facebook conversation referred to at [26] above stating that S had lied all her 21 years of her life. There is at least a reasonable possibility that A would have given a negative answer to the oath-belief question.
The Director’s contention at the second level is that, on the assumption that A had given a negative answer to the oath-belief question, the answer would have had “the weight of a bantam feather” and this Court can be satisfied that there is no real possibility that the error had affected the outcome.[93] The problem with this submission is that the Crown case at trial was almost entirely dependent upon the credibility of S and acceptance by the jury beyond reasonable doubt of the honesty and reliability of her evidence. It is difficult for this Court to speculate as to the effect which the question and answer may have had upon the jury’s assessment of the credibility of S.
[93] The test stated in R v Southon [2003] SASC 205; (2003) 85 SASR 436 at [69] per Sulan J (Duggan and Lander JJ agreeing); See also Driscoll v The Queen (1977) 137 CLR 517 at 542 – 543 per Gibbs J (Mason and Jacobs JJ agreeing).
The Director’s contention at the third level is that this Court can be satisfied on its own review of the evidence at trial that a reasonable jury, properly directed, would on the admissible evidence have inevitably convicted.[94] The Director’s contention in other words is that, on its own assessment of the evidence given at trial, this Court can be satisfied that, if A had answered the oath-belief question in the negative, nevertheless the jury would, acting reasonably, have inevitably convicted the defendant.
[94] Maric v R (1978) 20 ALR 513 at 520 per Gibbs J (Mason and Jacobs JJ agreeing); R v Nylander [2003] SASC 191; (2003) 228 LSJS 24 at [46] per Bleby J (Prior and Sulan JJ agreeing).
The problem with the Director’s submission is that the verdict of guilty depended almost entirely upon the acceptance of S’s evidence. There was no compelling corroborative evidence upon which this Court could rely independently of an assessment of the evidence given by S. It is not possible for this Court, which did not hear or see S give evidence, to be satisfied that on the evidence adduced, coupled with the oath-belief question and answer, a reasonable jury would inevitably have convicted the defendant. It is not possible for this Court to make its own assessment of the evidence as a whole and conclude that the defendant has not lost a possible opportunity of acquittal.
The Director’s fourth alternative contention should be rejected. It is not appropriate to apply the proviso in this case.
The Facebook conversation
The defendant seeks permission to amend his notice of appeal to add a second ground challenging the Judge’s ruling which precluded his putting the Facebook conversation before A. The defendant requires an extension of time because the application to amend was made at the hearing of the appeal, well outside the period of 21 days in which to appeal specified by rule 4A of the Supreme Court Criminal Appeals Rules 1996 (SA).
The Director does not identify any prejudice which would be occasioned by an extension of time. The parties made full submissions on the merits of the proposed additional ground of appeal. In those circumstances, permission to amend should be granted.
In light of the fact that the defendant accepts that the second ground is subsidiary to the first ground and the fact that I consider that the appeal should be allowed on the first ground, it is not strictly necessary to determine the second ground. However, as it was argued, I address its merits as follows.
The defendant contends that his counsel was entitled to put the Facebook document to witness A pursuant to section 29 of the Evidence Act.
The reason given by the Judge for upholding the prosecutor’s objection was that the defendant had not proved the provenance of the document which his counsel sought to put to the witness. The Judge erred in upholding the objection on that particular ground. The issue of proof of the provenance of the document would not arise until a later stage at which the defendant sought to tender the document, depending upon the answers received to the questions asked of A.
However, the defendant relies upon and asserts the continuing existence of the oath-belief rule set out at [29] above as the justification for the line of questioning involving the Facebook document and for putting the Facebook document before the witness A. The oath-belief rule itself precludes A being asked about the particular facts, circumstances or incidents which might have formed the basis of an opinion by A that he would not believe S on her oath.[95]
[95] See proposition 3 in the formulation of the rule by the Court of Appeal in Richardson quoted at [29] above. This proposition was clearly laid down by the Court of Appeal in Gunewardene and became established by the end of the eighteenth century: see [50] above.
The avowed purpose of counsel for the defendant in seeking to put the Facebook document before A was to elicit, if possible, evidence from A that S had told lies over the course of her 21 years of life. Such questions are expressly precluded by the third limb of the oath-belief rule as advanced by the defendant himself. The defendant could not achieve via the back door of putting to A a document what he could not achieve directly by asking questions about the conduct of S which was relevant only to credibility.
The second ground of appeal should be rejected.
Conclusion
I would allow the appeal and set aside the convictions. I would order a retrial and remit the matter to the District Court for that purpose.