Stanoevski v The Queen

[2000] HCATrans 381

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S251 of 1999

B e t w e e n -

LILJANA STANOEVSKI

Appellant

and

THE QUEEN

Respondent

GAUDRON J
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 SEPTEMBER 2000, AT 10.18 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the appellant with my learned friends, MR S.J. ODGERS and MR A.S. KOSTOPOULOS.  (instructed by Greg Walsh & Co)

MR T.L. BUDDIN, SC:   May it please the Court, I appear together with my learned friend, MR R.A. HULME, on behalf of the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

MR GAME:   If the Court pleases, before I take the Court to the various rulings and exchanges which are the subject of this appeal it might be convenient if I could take the Court to some of the relevant provisions of the Evidence Act because otherwise I will have to keep going back to them during the course of the exchange and I hope to do my best with elucidating in some respects what these ‑ ‑ ‑

GAUDRON J:   We will be indebted to you, Mr Game.

KIRBY J:   That was the basis on which special leave was given, I think, the importance of the Evidence Act provisions.

MR GAME:   Yes.  I am not making any promises to provide everlasting insight into these provisions, but I will take the Court through the relevant provisions.  One begins, and the Court has been taken through these provisions before, but sections 55 and 56 are, as it were, driving provisions.  Section 55 says that:

evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment –

so that is the first provision.  Then subsection (2) should be noted:

In particular, evidence is not taken to be irrelevant only because it relates only to:

(a)  the credibility of a witness - - -

KIRBY J:   Now, the words at the end of that first subsection are important, “the probability of the existence of a fact in issue in the proceeding”.  But for that additional paragraph (2)(a), one might think that an issue in the proceeding is one which is raised by the indictment.

MR GAME:   That is true, your Honour.

KIRBY J:   But, when you read it with 55(2)(a), it seems to indicate that it has a wider meaning, because otherwise there would have been no need for that paragraph.

MR GAME:   I think the answer is that it is to make it clear that credibility evidence is relevant to a fact in issue.  That may amount to the same thing, your Honour.

It is worth bearing in mind that when one comes to section 102, notions such as “substantial probative value” are introduced and what that substantial probative value relates to is an issue that one has come back to, as it were.

Then section 56 says:

(1)  Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

So that is the overriding principle in the Act.

CALLINAN J:   Mr Game, can you throw any light on significance, if any, of the double negative in section 55(2)?  “Evidence is not taken to be irrelevant only” is not quite the same thing as saying that evidence is relevant.  Do you understand what I am asking?

MR GAME:   Yes, I understand the double negative question ‑ ‑ ‑

CALLINAN J:   The effect of it may be that simply because a matter relates to the credibility of a witness may not mean that it necessarily follows that it should be admitted.

MR GAME:   That is correct, yes.

CALLINAN J:   Is that right?

MR GAME:   Yes.

CALLINAN J:   It is curious that it is a double negative, is it not, generally frowned upon by exponents of clarity of expression?  You might think about that, anyway, and tell me what significance, if any, it has.

MR GAME:   A suggestion is put to me from my junior that section 55(2)(b), for example, refers to the “admissibility of other evidence” which might not be admissible under section 55(1).

CALLINAN J:   But that does not really answer the question because there are three clauses, (a), (b) and (c).

MR GAME:   Yes.  I cannot for the moment ‑ ‑ ‑

CALLINAN J:   Anyway, think about it, Mr Game.

MR GAME:   I cannot for the moment see what the particular significance of the double negative is in section 56(2), your Honour.

GAUDRON J:   Well, it means, surely, it may or may not be admissible.  It is not inadmissible simply because it goes to credibility.  But it otherwise has to be found to be relevant.

MR GAME:   Yes.  We then have a series of exclusionary rules.  It is not necessary to take the Court through them, but they include the hearsay rule, the opinion rule, tendency and coincidence.  Then one comes to – we have to go back to the tendency rule shortly – the credibility rule.

The credibility rule, which is at section 102, is an exclusionary rule.  Section 102 provides that:

Evidence that is relevant only to a witness’s credibility is not admissible.

Section 103 provides that:

The credibility rule does not apply to evidence adduced in cross‑examination of a witness if the evidence has substantial probative value.

GAUDRON J:   How is that to be ascertained?  Is that to be determined before the cross‑examination occurs?

MR GAME:   That is one of our contentions, if it necessary to come to that in this case, because of the words “evidence adduced in cross‑examination”.  There is a view expressed in a case called Beattie and some other cases that you look at the questions and see whether or not somehow the possible answers would have substantial probative value if they were what the questioner wanted.  We say that that is not ‑ ‑ ‑

GAUDRON J:   That is not what the section says.

MR GAME:   That is not what the section says, so we say Beattie is wrongly decided in that respect.  There is another question about this which does not really arise in this case.  Does it mean substantial probative value to the issue of credit or does it mean substantial probative value to the question of the issues in the case?

HAYNE J:   What illumination, if any, does the definition of “probative value” in the dictionary cast on that conundrum?

MR GAME:   It would suggest issues, I think, your Honour, but I will just ‑ ‑ ‑

HAYNE J:   No, “existence of a fact in issue”.  So, “fact in issue” is that – firstly, do you accept that the definition in the dictionary of “probative value” is to be taken into account in looking at 103(2)?

MR GAME:   Yes.

HAYNE J:   Then, is “a fact in issue” spoken of in the definition of “probative value” confined to facts in issue as identified by the indictment and the plea of not guilty?

MR GAME:   Yes, your Honour.

GAUDRON J:   And, perhaps, if particulars were given, the particulars of the indictment.

HAYNE J:   Yes.  Then, how does that sit as an exception in 103 to the otherwise general exclusionary rule in 102 where the general exclusionary rule in 102 is concerned with evidence relevant only to credibility, that is, presumably, evidence that is not relevant to facts in issue, or where have I slipped?  There is some conundrum in there, I think.

MR GAME:   There is a conundrum there, your Honour, and I am not sure whether this answers that conundrum but maybe if one goes back to section 55(2), that when it says:

In particular, evidence is not taken to be irrelevant only because it relates only to:

(a)  the credibility of a witness –

when it says “irrelevant”, it means irrelevant to the “existence of a fact in issue” so ‑ ‑ ‑

HAYNE J:   Can I perhaps tease it out a little in this way, with an example not terribly far from the facts of this case?  An accused person is charged with an offence of dishonesty.  Let us assume that there is, therefore, a fact in issue about dishonesty in the trial, of course.  Assuming, for the purposes of argument, which may be another assumption we have to test, that 103 bites on the evidence given by the accused person, assume further that the cross-examination which is directed is to demonstrate that the accused was dishonest in some separate respect on an entirely separate occasion, not an uncommon set of facts, how do you work through the statutory chain?

Presumably, 55(1) tells you that, knowing that the accused was dishonest on another occasion could, indirectly, rationally affect the assessment of the probability that the accused was dishonest on the occasion in question.  So far so good?

MR GAME:   Yes, but, your Honour, 104 in a criminal trial will cut the whole lot.

HAYNE J:   Well, questions of leave, but let us leave 104 and that complication for a moment.  I am sorry to take it step by step.

MR GAME:   Yes, okay.

HAYNE J:   But would 102 bite at all?

MR GAME:   If it is not relevant only to the witness’s credibility it would be ‑ ‑ ‑

HAYNE J:   Section 102 would not bite.

MR GAME:   Would not bite.

HAYNE J:   You would never get to consider 103.

MR GAME:   Yes.

HAYNE J:   I am not sure where that leaves us, other than me utterly confused.

GAUDRON J:   No, I, too, am confused because 103 takes the place of 102.

MR GAME:   Your Honour, can I just say this.  Forget about 104, but if you had a person charged with an offence of murder and a prior conviction for perjury, then the perjury would be relevant only to their credibility.  So, forgetting about 104 for the moment, 102 would bite because the question was relevant only to their credibility, the perjury conviction, because it did not have any other relevance in the case.

HAYNE J:   Right.  So how would 103 then operate?  What is the substantial probative value that would be, or could be, assigned to the conviction for perjury?  How would that rationally affect the assessment of the probability of the existence of a fact in issue?

MR GAME:   You would have to make a calculation via the credibility of that witness as to how probative it was to a fact in issue.

McHUGH J:   Now, is that right?  When you are dealing with the credibility rule in relation to probative value, substantial probative value, do you not throw all the weight of the relationship on the term “assessment”, “could rationally affect the assessment of the probability of the existence of a fact in issue?  So credibility could rationally affect the assessment because if, for example, it destroys your confidence in a witness then it affects the assessment of the probability.

MR GAME:   But the assessment there is by the fact finder.

McHUGH J:   Yes, certainly, but that is what the credibility rule is aimed at, is it not, in this particular dictionary?

HAYNE J:   And it affects assessment because I discount the evidence of the witness X, the witness X being an untrustworthy witness.

MR GAME:   Yes, but the assessment is of the probability of the existence of the fact in issue, not the – the fact in issue.  The witness might be giving evidence that is quite subsidiary to the case.  It might have little rational connection with a fact in issue.

McHUGH J:   Well, that may be ‑ ‑ ‑

HAYNE J:   And, therefore, do not have a great credibility brawl about the witness who proves the photographs.

MR GAME:   Yes, that is right, yes.

HAYNE J:   But have a great credibility brawl about the witness who says, “I saw the accused strike the victim with the knife.”

MR GAME:   Precisely, precisely.  That is right.  So that is precisely right.  That is the way it works.  The more important the witness ‑ ‑ ‑

McHUGH J:   Yes, but in the context of an accused person giving evidence, it is difficult to think that the 103 exception would not apply.  Anything that could rationally affect the assessment of your confidence or belief or evaluation of the accused must affect the probability of the existence of a fact in issue.

MR GAME:   It is highly likely with respect to – it is quite unlikely that that issue is determinative of the issues in a case such as this where it is the evidence of an accused person, yes.

GAUDRON J:   Well, so far as concerns an accused person, the substantial probative value has to be assessed, has it not, in the context that the Crown has the burden of proof or that the prosecution bears the burden of proof.

MR GAME:   Yes.  Yes, your Honour.  Just pausing there, you still have to make an assessment of the probity of the evidence under section 103.

McHUGH J:   Yes.

MR GAME:   And this is a point we make in the written submissions, whether it is 103 or 112, that involves an assessment of is the material that is being put material of substance or is it flimsy, as it were.  We will come back to that in a little more detail.  So that is sections 102 and 103.  Then in 104 – this applies in criminal proceedings and it applies in addition to section 103.  Section 104(2) says that:

A defendant must not be cross‑examined about a matter that is relevant only because it is relevant to the defendant’s credibility, unless the court gives leave.

So it is “only because it is relevant to the defendant’s credibility” and ‑ ‑ ‑

KIRBY J:   That was the case here, was it not?

MR GAME:   It depends, your Honour.  It depends, your Honour, on what view you take of ‑ ‑ ‑

KIRBY J:   But, I mean, it is the only basis upon which the evidence could be adduced.

MR GAME:   No, your Honour, but that is the only basis upon which it was put by the Crown prosecutor as being relevant until a relatively late stage.  When I say “a relatively late stage”, at some stage late in the prosecution case.  The prosecutor put it on this basis, but shifted his basis to section 112 some time later, but we will come back to that.  But, your Honour, character could be introduced and there could be cross‑examination that was relevant only to the defendant’s credibility and in the example I gave before, if you were charged with murder and you had a conviction for perjury, then, although character had been raised, the cross‑examination would be relevant on that to credibility only, so section 104 would apply in addition to the provisions relating to character.

Section 104(3) says that you do not need leave for those things in 104(3).  Then section 104(4) says in effect that you cannot get leave unless you raise character or unless you cross‑examined the prosecution witnesses in a particular way.  So in a sense section 104(4) logically comes before 104(2).

KIRBY J:   Does the structure of the Act, Parts 3.7 and 3.8, postulate that evidence must be either relevant to credibility or character and cannot be both?

MR GAME:   No, it is unclear, your Honour, but we would see the character provisions as being essentially an exception to the exclusionary provisions.  But what we will say is that section 104 still applies even in respect of Part 3.8.  I will explain why that is quite shortly.  One comes then to section 106.  Section 106 concerns:

The credibility rule does not apply to evidence that tends to prove –

so we are not talking about cross‑examination any more.  We are talking about evidence rebutting evidence that is – denial is in respect of credibility.

So, if you put to a witness that they have a prior conviction for perjury, to take section 106(b), and they deny it, then you can prove the conviction.  But if we are just talking credibility, if you put to the witness that they have previously committed forgery and that is all that happens and they deny it, then you cannot get the evidence in under section 106.  So, if it is credibility only and it is put to the accused, “I put to you that you forged some family law documents” and the witness says, “No”, then that is the end of it.  But with respect to conviction, if they admit it, then they are done, as it were, and if they deny it, they are done because the conviction is proved.  So the denial itself works with respect to credibility.  So we would say that there is logic in the way in which the provisions work in this respect.

I neglected to mention with respect to 104 with respect to the leave provisions.  I should say section 137 applies across the board with respect to the Act and it is necessary to just note that in passing here.  It does have relevance to this particular case.  So 137 provides that:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

GAUDRON J:   That is no longer a discretion in any real sense.

MR GAME:   No, that is correct, your Honour, but ‑ ‑ ‑

KIRBY J:   There has to be a classification of it as undue prejudice.

MR GAME:   Quite.  It is a balancing exercise, but it you come to a particular view about it, you must exclude it.

KIRBY J:   What you need is a little road map for these provisions; going along, you are chugging along – all of this has to be done, let us remember, instantaneously by a judge conducting a highly dramatic public event, a criminal trial - you are going along and then the evidence is tendered.  Now, when do you reach the view - it may be after a few questions - that it is unfair prejudice to the defendant?

GAUDRON J:   Yes, we do get to some evidence in this case, do we not?

MR GAME:   You do get to some evidence, but ‑ ‑ ‑

GAUDRON J:   Some small amount of evidence.

MR GAME:   Well, evidence adduced by the prosecutor.  Questions asked by the prosecutor of the accused is evidence adduced by the prosecutor.  It does not make any difference that it is in the defence case.  So, section 137 applies to that evidence.  Section 137 then applies, but section 192 is the general leave provision.

KIRBY J:   So there are three leave gateways here.  A leave gateway under section 103, is it; a leave gateway under section 112, and then this one?

MR GAME:   Section 104, leave gateway, your Honour, yes.  Sections 104, 112 and 192, yes.  When one comes to 192, there are a number of criteria – section 192 is a general provision.  But then section 192(2) provides:

Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account –

the extent to which it would lengthen the trial –

(b)  the extent to which to do so would be unfair to a party or to a witness, and

(c)  the importance of the evidence in relation to which the leave, permission or direction is sought –

and we would submit that that includes issues such as probity, and the onus is on the party seeking the leave.  So, in effect, the onus is on the party to satisfy the court of these matters, we would submit.

(d)  the nature of the proceeding, and

there is another one:

(e)  the power (if any) of the court to adjourn –

which is not relevant.

KIRBY J:   I think I misled myself; that is not actually an extra leave provision, it is an explanation of what you do when you come to a leave gateway.

MR GAME:   That is correct, your Honour.

KIRBY J:   So there are two leave provisions, one the specific and one the general.

MR GAME:   That is correct, your Honour, but, as I said before, 137 continues to have work to do throughout and can be ‑ ‑ ‑

KIRBY J:   The problem I have about “substantial probative value” is you may not know until after the evidence starts coming out as to whether it is going to be of substantial probative value.

MR GAME:   That is true, your Honour, but section 103 does not require leave, which is where the words “substantial probative value” come in.  But our argument about section 103 is this, your Honour:  because the section says “evidence adduced” by the prosecution, you cannot do what, as it were, was proposed by the prosecutor in this case and say, “Oh well, if she denies it, then no harm done.  If she answers it incriminatingly, then it has substantial probative value, and if she exercises her rights, then that does not matter.”  The very thing that was being posited is the very thing that you cannot do and it may require – and there is no reason why it should not in an appropriate case – it may require that evidence be taken on the voir dire with respect to that issue during the cross‑examination of the witness.

HAYNE J:   I do not follow that, Mr Game.  Sorry, you will need to back up.  What is the evidence adduced in this context?  I know it is not the question, it is the answer.

MR GAME:   It is the answer.

HAYNE J:   So the answer is either, yes, I did this, or no, I did not.

MR GAME:   Yes, if the question is, “I put to you that you committed forgery”, and the witness’ honesty is, obviously enough, relevant to credibility, so, if the witness admits it, then it has substantial probative value.

HAYNE J:   If she denies it?

MR GAME:   It is irrelevant.

HAYNE J:   Yes.  So, sorry, I am not following what the point is you are making about 103?

MR GAME:   The question, let us just take that simple example.  If the prosecutor says, “I want to put to this witness, for credibility reasons only, that she on another occasion committed forgery.” and the judge says - well, she might say no or she might – in fact as was said in this case – or she might exercise her rights, there is no way of knowing whether that evidence has got substantial probative value until you hear the answer.

HAYNE J:   Yes.

MR GAME:   The jury should not hear the question put, and ‑ ‑ ‑

HAYNE J:   Why not?  The jury will be routinely instructed, will it not, that counsel’s questions are of no significance.  The evidence is the answer, not the question, that is the standard direction, is it not?

MR GAME:   But, your Honour, the problem with that question is that it introduces the notion of prejudice to the process.  It has no relevance, it is simply introducing a prejudicial smear on the witness by putting to the witness that on some other occasion – and it has a particular bite in this case because of the circumstances and the time, but that is another thing – but just looking at that particular example, if the evidence has got no substantial probative value, then its admissibility should be determined prior to it – let us just put it this way:  say, for example, the prosecutor said to the - “I am going to cross‑examine on, put an allegation of forgery”; the accused says, “Well, I am going to object”, let us just say they say, “Well, we will take some evidence on the voir dire”, and the witness says, “No, I did not commit forgery” and that is the end of it.  The only proper exercise of discretion in those circumstances would be not to allow that question to be put in front of the jury.  It has no probity, it does not satisfy section 103 and it should not be put. 

Now, the whole history of questions about credibility, particularly accused persons, is prohibiting particular sorts of questions.  For example, the English Evidence Act refers to “a witness shall not be asked” and “shall not be required to answer”, and the Evidence Act speaks in terms of a witness being asked.  It is not just the answer that one looks at.  But, your Honour, as I say, 103, for reasons which I will explain in a minute, we think, full ‑ ‑ ‑

McHUGH J:   In the illustration you gave, supposing on the voir dire the witness says, “No, I didn’t commit forgery” and the prosecution then were to prove that he or she did, what happens then?

MR GAME:   They cannot, because of section 106.  That is if it is constrained to credibility, that is the end of it and that is why the question should not be put.  That is why the distinction between an allegation, as it were, and a conviction is so significant in respect of proof or disproof of matters going to credibility.  Now, I have done section 106.  One then comes to section 110.  Section 110, broadly speaking, deals with character but it creates exceptions to a series of exclusionary rules.  So, section 110 – of course, we are not simply dealing here with evidence that necessarily comes from an accused person, we are not dealing with cross‑examination, we are dealing with evidence in a general sense.  Section 110(1) says:

The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.

Now, when one refers to the tendency rule and the credibility rule, those are the rules in sections 97 and 102 respectively, and there may be other sections in those parts that survive but I will come back to that in one  moment.  One might note that there is no reference there to coincidence and no reference to section 101.  Section 110(2) is a relevant provision in this case:

If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted –

Now, in this case we say evidence was adduced by the accused in the prosecution case that tended to prove that she was generally a person of good character, it was on the way towards proving it and there was the question of the detective.  Then:

the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove –

and that means adduced to prove by the prosecution ‑

that the defendant is not generally a person of good character.

I have to take them one by one, but if one goes back, first, to the credibility rule then it would seem ‑ and this has not been the subject of any judicial consideration that we are aware of ‑ but it would seem that section 110(1) and (2) then, the rule in 102 does not apply but the rule in 104 still does apply and although, again, it is a matter for interpretation of the provisions, but it would seem that section 103 does not apply.

HAYNE J:   That follows, does it not, from the dictionary definition of “opinion rule”, I think.

MR GAME:   “Credibility rule”.

HAYNE J:   “Credibility rule” means section 102, therefore, would one not read 110(2), relevantly, as section 102 does not apply, as well as certain other sections containing the “hearsay rule”, “tendency rule” and other rules?  But you just transport the relevant number of the section in, do you not?

MR GAME:   If the credibility rule does not apply, then one does not get to section 103, would be the logic of – that is why we think 103 does not apply.  Because 102 has gone, one does not get to 103.

HAYNE J:   But if you take the terms out of the dictionary, expand them and put them into 110, the consequences of that process is that some particular identified section numbers do not apply.

MR GAME:   Yes.

HAYNE J:   Yes.

MR GAME:   What I was trying to say was, if you read 102 into 110, then 103 has no work to do and, therefore, it does not apply either.  That would be our interpretation of it.  But that is not the same for section 104.  Section 104 would seem to survive because that is not the credibility rule in section 102.  It has not referred to the credibility rule.

GAUDRON J:   I would have thought it worked a little differently, Mr Game.  Although it is said to be an exception to the credibility rule, it says the credibility rule does not apply.  When you look at 104, which is said to apply “in addition” to 103, it would seem to me that when it comes to cross-examination as to credibility, at least, that you have to be able to predicate that the evidence is of substantial probative value as well as satisfy the conditions in (4).

MR GAME:   Yes, your Honour, that is a possible interpretation of ‑ ‑ ‑

GAUDRON J:   But if you take it your way, on the way you are analysing it, then there is no need to have the substantial probative value rule.

MR GAME:   I have to confess, your Honour, that the way you have just put it is the first time that – I mean, it seems like a sensible interpretation and we had not considered that particular view of section 104.  We would accept that as an interpretation of section 104, which means that section 103 survives in the context of section 104.

HAYNE J:   I do not want to prolong this unduly but you have begun with 55 and 56.  You have a piece of evidence that, by hypothesis, is relevant.

MR GAME:   Yes.

HAYNE J:   You might have thought that the evidence was caught by Part 3.7.  If it is, you deal with it in Part 3.7.  When you come to apply Part 3.8 to this evidence, you find in 110(1) a provision which, taking account of the definitions, could read in 110(1) “sections 59(1), 76, 97 and 102 do not apply to this evidence”.

MR GAME:   Yes.

HAYNE J:   But if you first determine the 55, 56 question, prima facie, it is in and 110 is saying certain other provisions do not operate to exclude it.  Is that the way it works?

MR GAME:   Yes, that is the way.  When an accused person raises character then evidence could be adduced by the prosecution that is relevant only to credibility.  The example we gave at the commencement, which is the person charged with murder, allegation of perjury or conviction for perjury.  What we are saying is that in that context, even though that evidence is relevant only to credibility, section 104 continues to apply notwithstanding the fact that 102 is gone and that is the only point we make about the relationship between these provisions at this point.

Now, there is another thing about section 110 that may be of relevance and, again, there is no case that addresses this particular question but at common law and under the statutory provisions evidence led by the prosecution to meet a case of good character was thought to only rebut it and the question is left to be answered whether or not that evidence which is adduced by the prosecution is merely rebuttal evidence or is it something more.

Now this takes us back to the tendency provisions and also one has to go back to the tendency provisions in any event but if one goes back then to the tendency provisions, section 97 says that:

Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way –

et cetera.

Now, obviously enough, character is something broader than tendency.  Tendency is a process of reasoning and character is the characteristics that a person has from which one may reason in a particular way with respect to tendency.  Section 97 is concerned with that process of reasoning.

Section 101 is the provision that applies in respect of criminal proceedings and section 101 is not the tendency rule but it would seem that it has work to do in this context because 101(3) – I am sorry, 110 does not refer to 101 but section 101(2) says:

Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

Just pausing there, there is no decision of this Court that addresses 101(2) but there are New South Wales Court of Criminal Appeal decisions that say in effect that Pfennig-type considerations apply to 101(2) in assessing substantial probative value.  The relevant provision in this context is 101(3) which says:

This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

It may be drawing too long a bow but that seems to suggest that the evidence that was adduced under 110 was rebuttal only and it does seem to ‑ ‑ ‑

GAUDRON J:   You have lost me, Mr Game, I am sorry.  I take it this is what used to be called similar fact evidence or improbability evidence?

MR GAME:   Yes.

GAUDRON J:   For the moment, unless we have a defendant alleging that one of the police prosecutors is always verballing people charged with a particular offence, I cannot for the moment put a practical application to 101(3).

MR GAME:   Your Honour, I should say this.  We would embrace wholeheartedly any proposition that 101 survives but we see a problem with its survival because section 97 refers to:

Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had…..(whether because of the person’s character –

it appears to ‑ ‑ ‑

GAUDRON J:   Yes, but 97 seems to distinguish between character evidence and tendency evidence.  Section 101 is talking about tendency evidence about a defendant or coincidence.

MR GAME:   Yes, your Honour, but the question we are asking at the moment is what has gone in section 110 when it refers to the tendency rule and what survives?

GAUDRON J:   I see.

MR GAME:   We go back to section 97 and we go back to 101 because we are asking ourselves at this moment what survives when we go back to the tendency rule.  It might be just 97 that goes.

HAYNE J:   But that is the defined term.

MR GAME:   It is defined, yes.

HAYNE J:   And that is what goes.

MR GAME:   Quite, your Honour.  There is no reference to 101.  If 101 continues, then the prosecution cannot introduce evidence in respect of tendencies of the accused unless it has substantial probative value subject to 101(3).

HAYNE J:   Section 101 must be read in the light of 94(1), must it not?  No, it does not apply; it relates only.  I see.

MR GAME:   I am sorry, I should have noted section 95.

HAYNE J:   Yes, it is a red herring, I think, Mr Game, sorry.

MR GAME:   That is all right.  Section 97 has gone.  The question is, “Has section 101 gone?”  And I was putting an argument against ourselves, as it were, that 101(3) seemed to suggest that 101 had gone if the evidence that the prosecution was adducing was evidence that was adduced:

to explain or contradict tendency evidence adduced by the defendant.

That is to rebut the, “I am a honest person, therefore, I do not have a tendency to act in a dishonest way,” if that is how it is characterised, but there was a second proposition that I put in this, which is that 101(3) – and I said before that this may be drawing too long a bow, but 101(3) seems to suggest, contrary to 110, that the evidence was led as rebuttal only.  Now, it does not seems to have been the intention of the Law Reform Commission that 110, prosecution‑led evidence, would be rebuttal only in the BRS sense or the Donnini sense, but what I am saying here is that it seems – and it is a glimmer of an indication – that 101(3) intended that what the prosecution led, if it was to rebut tendency evidence in the sense that I have said, then that is rebuttal only if that is how 101(3) is to be interpreted.

McHUGH J:   But your whole argument concerning 110(1) depends upon, in effect, taking the opening words of the various parts, such as 102, 94 and 97, if you like.  Why is not the sensible way to regard Part 3.8 when it refers in 110 to:

The hearsay rule, the opinion rule, the tendency rule and the credibility rule –

taking the rule and all its exceptions and its glosses with it?  In other words, you read 110(1) as, in effect, saying, “Part 3.2 concerning hearsay, Part 3.3 concerning opinion, Part 3.6 concerning tendency and Part 3.7 concerning credibility do not apply.”

MR GAME:   Your Honour, the answer to that is that when one goes to each of those rules in the dictionary, in each instance it will say, “Opinion rule means section 76.  Tendency rule means section 97,” and so forth with respect to each of the rules.  So it is not merely a question of strict statutory construction.  It is the only construction, in our submission, that is of those provisions.  The tendency rule is that rule in that section.  It is not something else that may or may not survive in that particular part and it would have been easy enough to say, “Part 3.2, 3.4, 3.5 and 6, whatever they are, 3.7 do not apply to evidence.”  But it does not say that, your Honour.  So that is our argument in respect of that provision.  Now, one then goes to section 112.  Now, section 112 is:

A defendant is not to be cross‑examined about matters arising out of evidence of a kind –

and, again, a question arises of a statutory interpretation as to what is meant by “arising out of evidence of a kind referred to in this Part”.

Then section 112 takes us forwards to section 192 and the provisions I took the Court to before in that regard, and section 137 would have an overriding application. 

So, those are the provisions.  I would not pretend for one moment that the questions of construction or interpretation of those provisions was particularly straightforward.  But that is the statutory context within which what happened in this case took place and what happens regularly in cases where character is raised.

In a minute I will take the Court to the relevant passages in the transcript, but to highlight the importance of the considerations of this kind, it is not unusual, and in fact it is a regular occurrence, for example, that an accused person might be charged with three counts of sexual assault, receive separate trials, have otherwise good character and a question arises as to whether or not the prosecution can introduce in one form or another into the trial, once the accused has raised good character, the allegations from the other counts.

To take this particular case, assuming that the appellant had been charged both with conspiracy to defraud and forgery, obtained separate trials, would it be admissible for the prosecution to adduce evidence – and I say for the present purposes in one form or another – of the allegation in support of the forgery, separate trials having been obtained?  We submit that it would not and that the analogy applies precisely to the circumstances of this case.  What happened in this case has its own particular complexities, which we have attempted to elucidate in some further detail in our reply.

McHUGH J:   Before you go on, can I just get your submission on this point.  I appreciate the force of the point that you make concerning the dictionary definitions of the hearsay rule, the credibility rule and so on.  But, you concede, for example, as I understand it, that 103 does not apply, it goes.  What about 104(2):

A defendant must not be cross-examined about a matter that is relevant only because it is relevant to the defendant’s credibility, unless the court gives leave.

Does that go?

MR GAME:   No, your Honour.

McHUGH J:   It stays?

MR GAME:   Yes.  I know it is in the same terms as section 102 – sorry, did you say does 112 stay?

McHUGH J:   I said does 104(2)?

MR GAME:   Yes, it stays.

McHUGH J:   It stays.  Notwithstanding that there is very little difference, is there, between it and 12 in this context?

MR GAME:   That is true, your Honour.

McHUGH J:   I know you say that 104(4) applies and, literally, there may be something to be said for that, but it really does not seem to make much sense, given the terms of Part 3.8.

MR GAME:   Well, I think there might be a historical explanation for that which is, I think section 112 was a late entry to the statutory provisions but whether or not that explains it I do not know, but section ‑ ‑ ‑

McHUGH J:   Another explanation is that it is referring, really, to other witnesses.

MR GAME:   Which – section ‑ ‑ ‑

McHUGH J:   Section 104(4).

MR GAME:   Well, 104(4) is concerned with two things, one is if you drop your shield and the other is if you raise character positively.

McHUGH J:   But it is not necessarily dealing with cross-examination of the defendant.

MR GAME:   Yes, 104(4) is dealing specifically with cross-examination of the defendant but you could have a ‑ ‑ ‑

McHUGH J:   But why do you say that?

MR GAME:   Because it is concerned with leave relating to cross‑examination under section 104(2) but you could have a situation under 104 where the accused ‑ ‑ ‑

McHUGH J:   You have got to say that (2), (3) and (4) are a series of steps.  What happens if a witness is cross‑examined about some fact which is relevant to the defendant’s credibility?

MR GAME:   Section 104 is not relevant to that situation at all, it is only concerned with cross‑examination of the accused.

McHUGH J:   But, I mean, the opening words of the Part, 102, talks about:

Evidence that is relevant only to a witness’s credibility is not admissible.

Then you have got 104(4).  Why should you confine the terms of 104(4) to the defendant’s?  You say, “Well, because 104(2) is referring to the defendant’s credibility”.

MR GAME:   I may have missed something here but 104(2) says:

A defendant must not be cross‑examined…..unless ‑ ‑ ‑

McHUGH J:   Yes.

MR GAME:   So, how could it apply to some other witness apart from the defendant?

McHUGH J:   What I am putting to you is that if in the circumstances, in the context of the trial the defendant has raised character, as is referred to in 104(4)(a), and some witness is called in the defendant’s case, the prosecutor wants to cross‑examine that witness about something that is relevant to the defendant’s credibility.  Why does not 104(4) apply in that situation?

MR GAME:   Well, I think it could do.

McHUGH J:   Yes, well, that is all I was putting to you.

MR GAME:   I am sorry.

HAYNE J:   Well, 104(4) has got to be read, also, with 104(6) - (4) and (6) deal with, at least cross‑examination of the accused, 104(4) by the Crown, 104(6) by the co-accused.

MR GAME:   Yes.

HAYNE J:   Do you say that 104(4) or 104(6), or both, could apply to cross‑examination of some person other than the accused, because if you do where lies the requirement for leave to cross-examine of which 104(4) and 104(6) speak?

MR GAME:   I am sorry, I have to either qualify or retract a concession I made to your Honour Justice McHugh because it would seem that, on our case, section 104(4) is solely a qualification on 104(2).  So it cannot open up the ability to cross-examine some other witness without getting through 104 – you have to get through 104(2).

McHUGH J:   Well, you get some strength from that submission, I suppose, from the headnote itself which talks about cross-examination of accused.

MR GAME:   I think this has been considered in Lee, but I think the headings are not part of the statute.  I cannot remember, but it was addressed in argument in Lee, and I am sorry, I just cannot remember what the answer is.

HAYNE J:   This is making life so much easier at trial in the District Court, I am sure, Mr Game.

MR GAME:   I think the conspiracy to avoid the provisions of the Evidence Act has been put to bed.  Now that people are grappling with it, it is not straightforward, I am afraid.  Now, if one comes back to what occurred in this particular case, I am going to take the Court through various passages of transcript in some rulings which we have outlined in the submissions, and I will endeavour to do it summarily, if possible.  But if one goes first to page 111, which is in the first appeal book ‑ ‑ ‑

GAUDRON J:   When you are there, what is this rule of the District Court that says you can have advance rulings?

MR GAME:   It is Part 53, says that you can get advance rule.  Part 53 of the District Court Rules contemplates that you can get rulings on evidence from the trial judge before the jury is empanelled.  We would, as a general submission, we would submit – it is not essential to our argument, obviously, but it is no part of our argument to criticise the having of advance rulings.  In fact, we would submit that advance rulings is one of the very positive developments in criminal procedure in the last 20 or so years because it enables the parties to know, with certainty, what evidence is going to go before the jury, and brutal and sometimes unwise tactical decisions are not made because the parties can have the trial judge determine that particular issue in advance.

Character is one of the critical areas in this particular context and it has been approved in two cases we refer to in our submissions, Hamilton and PKS.  Rulings in advance have been given in a number of jurisdictions, as I said, for a number of years now, and in my experience, over the last 15 or 20 years, with respect to character.  Now, at page 111, counsel raised the question of character.  He raised it ‑ and at this point in the trial, this is during the re-examination of the witness, Wailes, it is the third day of the trial ‑ the prosecutor is in possession of a report called “Preliminary Report by Investigator”, which is then tendered to the trial judge on the voir dire, as it were, and we have provided the Court with copies of that.  Now, that report contained allegations of forgery.  That was Mr Owens’ conclusions.  It contained a handwriting expert’s report of Mr Chris Anderson, and it contained statutory declaration of Ms Wailes.

KIRBY J:   I received this – was this part of the evidence.

MR GAME:   No, your Honour, this thing here, this is the exhibit on the voir dire, and this contains the statutory declaration of Ms Wailes, which is at page 1028.  It contains the contested signatures which are particularly at 1007 and following and it contains a number of signatures, which are said to be true signatures, of Ms Fowler, and it contains a handwriting expert’s report of 1085 which we would submit is equivocal and it was put that it was equivocal, namely that all that could be said is that the appellant was not eliminated.

KIRBY J:   Where is a genuine signature?

MR GAME:   A genuine signature is - what is said to be a genuine signature, I will just find one, your Honour.  What is said to be a genuine one is at page 1019 - is one and the following pages; 1017.

KIRBY J:   Did Ms Fowler give evidence on the voir dire?

MR GAME:   No, your Honour, and there is no statement from her.  She did not complain about it and, as the prosecutor himself said, the inquiry by the Law Society was going nowhere and we would submit, as the trial judge himself observed later, that the whole thing depended upon Ms Wailes’ assertions.  Now, you see, indeed, the reference to the need to get 30 signatures from Mrs Stanoevski.  That is at page 1087 in the report of Mr Anderson.  In fact, that was one of the things that the prosecutor attempted unsuccessfully, as it turned out, to do, was to get the accused, as it were, in the witness box to sign her name 30 times.  So that is the document that was tendered ‑ ‑ ‑

CALLINAN J:   There would have been a forgery trial, in effect, if that had happened.

MR GAME:   It would have been a forgery trial, your Honour, but we say that the prosecution’s position is no better – in fact, it is worse, we submit – that there is no evidence coming in in the case.  Once one has concluded that the prosecution should not lead evidence in the case of the forgery, then necessarily, we would submit, that the prosecution should not be allowed to cross‑examine on it to see if it can make some progress in establishing or rebutting a fact in issue or what is seen to be a fact in issue in the case.

KIRBY J:   But if the test is still a test of fairness and if you raise it yourself in examination-in-chief of the accused, then it is a very different thing to go down the burrow and chase every element of the evidence.  I can understand that would be objectionable and the trial judge declined to allow that.  But simply to allow your client to be examined, (a) because she had raised it, and (b) it is said, because it was relevant to the issue of credibility or character, does not seem to me to be unfair.

MR GAME:   But we have endeavoured to show that the sequence of events meant that the accused’s hand was forced at that point because ‑ ‑ ‑

CALLINAN J:   If you wanted to go into character evidence, you had to raise it as a forensic measure because you knew at that stage that if you did not want to go into character evidence, there would inevitably be cross‑examination in an attempt to tender evidence on this matter.

MR GAME:   Yes.  Yes, and if we did not say something about it the jury might well conclude that the source of the allegation was Ms Fowler, which is infinitely more prejudicial.

KIRBY J:   Yes, but I realise, as Justice Hunt said, that you faced a very difficult choice, a very critical choice, but it just seems very hard to say once the matter is opened up - you have made your choice, you have opened it up, it seems difficult to say the prosecution is forbidden from testing it.

MR GAME:   The sequence does not support that conclusion, in our submission, your Honour, because we got an advance ruling and the advance ruling was that the prosecution would be entitled to cross‑examine on this material and that defence counsel said, during cross‑examination when this was raised, he said, in effect, “I’ve done no more than I reasonably contemplated the prosecutor would do in cross‑examination.” and that was not questioned.

KIRBY J:   What, he was trying to help the prosecutor do his job for him?

MR GAME:   No, no.  Well, if he said nothing, then it would come out of the blue in cross‑examination of the accused and it would look much worse for him.  The sequence of events is this, your Honour.  The advance ruling, which is at the heart of our challenge in this case, is given which says to the prosecutor, “You’ve got these allegations from the Law Society.  If the accused raises character I will let you cross‑examine on that material” and that is the effect of the ruling.

GAUDRON J:   And that seems to be based on a notion that the prosecutor was bound to raise it.

MR GAME:   Yes.

GAUDRON J:   Whereas on any view the prosecutor had to get leave.  No matter what section it came under, the prosecutor had to have leave.

MR GAME:   You would be obliged to put those matters to the accused and it was put as if somehow the choice that the accused had was a matter that would be relevant to the granting of leave, but the choice that the accused has ceases to have any significance at all in this context and it also seems to assume – it seems to be on the connotation that the onus is on the accused because the ruling says, “I will have to reject Mr Skinner’s application” but that sort of ‑ ‑ ‑

KIRBY J:   What page is that ruling?

MR GAME:   Page 106D line 13.

CALLINAN J:   Mr Game, just before you go on with them – I am sorry, I do not want to take you off your line – but just looking at this document that was marked for identification on the voir dire ‑ ‑ ‑

MR GAME:   This one?

CALLINAN J:   Yes.  The report by Mr Owen, did he have the benefit of any cross‑examination or anything of that kind?

MR GAME:   No, your Honour.

CALLINAN J:   Well, that conclusion he has expressed in 3.1, how could he possibly express that conclusion?

MR GAME:   He could not but, your Honour, really ‑ ‑ ‑

CALLINAN J:   His solicitor reads a few documents, has an equivocal expert’s report and expresses an emphatic conclusion about forgery by your client.  Is that something that is necessary under the Law Society Act?  It seems to me to be an extraordinary distance to go.

MR GAME:   No.  Yes, he is relying on Wailes’ statutory declaration but, as I said, he has no statement from – these allegations were not pressed ultimately.

CALLINAN J:   No.  I understand that.  I am just concerned that the solicitor appointed by the Law Society is writing a document which, in effect, contains a complete judgment.  It is the form of it that concerns me.

KIRBY J:   All he does is recommend that the Attorney-General consider and then, if that is declined, that there be a charge to which the solicitor can answer the serious allegations of Ms Wailes.

CALLINAN J:   Well no, it goes further than that.  He says that the solicitor filed the forged documents, that the solicitor forged the documents.  It would be very difficult for an Attorney-General to reject that.  It just seems to me, in form, to be very unfair.

MR GAME:   The only conclusion he could come to on that material is that there was evidence in the form of Ms Wailes’ statutory declaration that supported such an allegation.

CALLINAN J:   Exactly.

MR GAME:   There is no other conclusion that could be drawn.

KIRBY J:   It depends a bit on what his function is under the Legal Practitioners Act, I suppose.

MR GAME:   Your Honour, the point about all this from our point of view is that this is the measure of the size of the thing that the accused is potentially confronting.

CALLINAN J:   And has to deal with in view of the course of the proceedings.

MR GAME:   Yes, quite.

KIRBY J:   Well, she could have taken the step that the judge, I think, invited and counselled, and that is to simply rely on the fact that she was a solicitor and that no evidence of any other wrongdoing had come out.  That could lead to a lot of forensic advocacy.  Instead she took the plunge and opened up and called extensive evidence about character.  It seems a little unfair that the Crown cannot say, “Well, hang on, there’s something in the background here, isn’t there?”.

MR GAME:   But, your Honour, that is one of the things that the trial judge relied upon in admitting the cross‑examination.  We submit that has, as I said before, no relevance to the proposition at all.  Secondly, for her simply to be a solicitor and not have the benefit of either the evidence or the direction is an entirely different thing and it is really of no assistance for her not to have the benefit of the character evidence.  If I take an example far from this situation:  let us say a well‑known and respected colleague was found coming through customs with some heroin in their bag, a fear that people might have, and the person said, “Well, I’m telling you I had no knowledge of how that got into my bag”.  If that person calls character witnesses to say this person does not lie and this person has no tendency to do things of this kind, that person’s case stands in an entirely different situation than if that person just sits there and says, “Well, I’m a barrister or a solicitor.  I’m an officer of the court”.

The jury will somehow know that.  They are as far away from each other as could be in terms of the what the jury ultimately comes to consider, and that reality has to be acknowledged as being at the heart of the decision that is made to introduce evidence of good character.  It is well nigh essential in some cases, and this was such a case.  The point is, as I have said before, the mere making of the decision has no relevance to the decision to grant leave to the prosecution.

KIRBY J:   The problem I am having, and it may be because I have not yet had time to think about all these sections of the Evidence Act, is that I can see the force of what you are saying but the solution that the Act and the common law appear to have given to the problem is to set a judicial discretion at the doorway.  Here the discretion was exercised with a degree of sensitivity, “No, you can’t call the witnesses, you can’t go down the burrow, you can’t get into the detail, but I’m going to allow some questions”, because otherwise the jury is left in rather a false position.

MR GAME:   But, your Honour, once you accept that it goes to character, it goes to a fact in issue ‑ ‑ ‑

KIRBY J:   Your basal proposition is accusations, unproved, no conviction, are not relevant and ought not to be ever allowed, whatever they are.

MR GAME:   No, that is not my basal proposition.  My basal proposition is that if the evidence has the particular character that it has in this - it is a bit like, or it is quite closely analogist to the Wheeler situation, which is a case where, in respect of good character – this is the school teacher example  with a group of children making allegations - the prosecution wants to reintroduce character.  In effect, the court said, “Well, you have to do the Hoch exercise, which is to exclude the possibility of concoction before you admit that evidence”.  In this particular case, the allegation ‑ ‑ ‑

KIRBY J:   You assume I know all these shorthands, Wheeler and Hoch.  I mean, you may live with Mr Wheeler’s problems and Mr Hoch’s problems, but I do not.

McHUGH J:   Well, Hoch is a well-known case, but Wheeler is unreported, is it not?

KIRBY J:   Well, he may be a well-known case, but he has not impinged on my consciousness.  I never pretend that I know something that I do not and I do not know about this Hoch, or I have forgotten.

MR GAME:   What I am saying is this:  one has to make an assessment of the probity of the material and that is absolutely at the beginning of any exercise of discretion, whether it be under section 112 or under 104, or 137.

GAUDRON J:   Can we stop you there for a moment?

MR GAME:   Yes.

GAUDRON J:   You are saying that there has to be something more than mere suspicion, are you?

MR GAME:   Yes.

GAUDRON J:   Unproven allegation.  There has to be something in it which makes it look as though the person really is, what, known – it depends, it seems to me, whether one goes to credibility or to character.

MR GAME:   Well, it does, your Honour.

GAUDRON J:   No, there may be a difference depending on whether it goes to credibility or character.  In character, is this in terms of what a person is known to have done or is that reputation only?  What is the nature of character evidence under this Act?  If it is credibility, it is really whether or not they have done something.  Credibility is whether or not they have done something, is it not?

MR GAME:   Yes, it may be.

GAUDRON J:   And character, is it whether or not they are known to, or thought to have done something?

MR GAME:   Yes, but it might be not doing something.  It might be not behaving in a particular ‑ ‑ ‑

GAUDRON J:   Yes, I know it ought to be reputation ‑ ‑ ‑

MR GAME:   It may be this person does not have a tendency to behave in a particular – this person conducts themselves honestly.

CALLINAN J:   It may be either or both.  It may be either credibility or propensity or both, is that right?

MR GAME:   Yes.  In the “drugs in the bag” instance, it is not in the person’s character to carry drugs, but also the person tells the truth.  So the person says, “Look, I am telling you I did not put them in there”, so that that has particular cogency in the case.

KIRBY J:   This is the whole problem of character; it rests on a theory of personality that you are stamped with some basal tendency.  It is 19th century psychology, but we are stuck with it, and it has found its way into the Evidence Act.

MR GAME:   I think it is actually 18th ‑ ‑ ‑

KIRBY J:   It is probably earlier.

MR GAME:   I think in Rowton they referred to Erskine, which is late 18th century.

KIRBY J:   I mean there are people, very fine people, who might, for reasons of love or greed, though in ordinary circumstances they would not carry heroin through the customs, carry it through on a particular occasion.  I mean, it happens all the time.

MR GAME:   Yes, but your Honour we are talking about whether or not they are entitled to put it before the jury and have it weighed in their favour in the case.  It is a proposition with a long history.  But there are relatively few cases where on one trial – we cannot find any, in fact, where another trial, as it were, allowed to be ventilated in this particular way.  We would submit that it makes no difference – in fact it is worse – that the judge says, “Well, you can put it in cross-examination, but I am not going to allow you to lead evidence”.  We say it is worse because once you have accepted that it is not of sufficient probity, or it is too prejudicial to allow the prosecution to lead evidence, then it cannot be a proper exercise of discretion to allow cross-examination on that material.

KIRBY J:   But could I just ask you, to get it clear in my mind, because we started with a very theoretical examination of the Evidence Act instead of having concrete facts with which to test it.  Is your proposition that the questioning was not available under the Evidence Act to be permitted or that the judge erred in permitting it?

MR GAME:   Error in discretion.  Leave should not have been granted.

KIRBY J:   The second?

MR GAME:   Yes.

KIRBY J:   I see.

GAUDRON J:   But when you say “error in discretion”, you locate that in – and I am looking for a word; it is not “probative value” ‑ ‑ ‑

MR GAME:   In an assessment of the probity of the ‑ ‑ ‑

GAUDRON J:   Probity?

MR GAME:   Well, the probative value, I suppose, but the reason we drew the analogy with Hoch – now, Hoch is the case which is – it is a decision of this Court where the Court considered the need to exclude the possibility of concoction and the follow‑on is in this Court of Boardman in the House of Lords, but says, in effect, you need to exclude the possibility of concoction and that is – I will just get the decision.  In Hoch 165 CLR, if I could just take the Court to a passage in the joint judgment at 296, the last paragraph:

In cases such as the present the similar fact evidence serves two functions.  Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by the other complainants.  Its second function is to serve as circumstantial evidence of the happening of the event or events in issue.  In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue.  In cases where there is a possibility of joint concoction there is another rational view of the evidence.  That rational view – viz joint concoction – is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies.  It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.

So the evidence would not be admissible in those circumstances.  Then in the following long paragraph on the next page – I will not read it all ‑ but there is a sentence towards the end, the sentence is this.  It says:

Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction.

Well, a fortiori, we would say the same applies in this case with respect to the – ex hypothesi to the witness Wailes.  The evidence comes from the same source.  It is her credibility that is at issue in this case and yet being brought into this case by way of cross‑examination are other allegations that Ms Wailes makes.

HAYNE J:   But can I back back a couple of steps, Mr Game, and see if I understand the way the argument is running?  You say that evidence is relevant if it could rationally affect the assessment of probability of existence of a fact in issue.  As I understand it, you do not say that the evidence which the prosecution sought to adduce here was not relevant.  You acknowledge that it could rationally affect an assessment.  Do I understand you to go on to say there are other possible rational views of the information that the evidence constitutes or explanations, other rational explanations, for the assertions made by Ms Wailes, for example, concoction?

MR GAME:   Yes, she made it up.

McHUGH J:   But what has Hoch got to do with the case?  I mean, Hoch is talking about concoction by two or more witnesses, as was in Boardman.  You have got a single witness.  What has Hoch got to do with it?

MR GAME:   But, your Honour, in principle it is no different.  If, for example, you had, as I said, a school teacher charged with having sex with four children in the class – I am sorry, we will take the same child in a moment, but we have four children – then, you exclude the possibility of them putting their heads together before you admit the evidence and you conduct that same exercise, we would submit, if there has been separate trials and character is raised before you admit the evidence of the others, with respect, on the question of character and that is what the unreported case of Wheeler says.  But now we move to this case, and let us say that this appellant had been charged with two offences:  she had been charged with conspiracy to defraud and she was charged with forgery - same witness but motive to lie in respect of the forgery one connected, as it were, with her testimony in the first case.

McHUGH J:   I hear what you say but in speaking for myself, Hoch and other cases was a judicial gloss put on a rule which was capable of causing great injustice.  I do not see why you want to put such a gloss in this statute.

MR GAME:   But, your Honour, it is not a question of putting a gloss on it, it is a question of assessing.  It is a question of – and it is only used for the purposes of identifying an analogy, but it is for the point of view of assessing probative value.

HAYNE J:   That is where I trip.

GAUDRON J:   I think Justice Hayne and I might be at least in similar paths here but perhaps not.  First of all, I think one has to look at the evidence that did emerge or was likely to emerge and ask how did that rationally affect the assessment of a proof in issue, and for the moment I do not see how it did, but you seem to concede that and then ‑ ‑ ‑

MR GAME:   No, I am sorry, I ‑ ‑ ‑

CALLINAN J:   Just before you answer her Honour’s question, I do not see either why you necessarily concede that, yet there may be a proper basis, but I could not understand why you so readily made that concession because I am not persuaded at the moment that it could rationally affect the fact in issue.

GAUDRON J:   And part of the reason why it may not rationally affect it is because it is near suspicious, supposition, to be contrasted with the situation where you can call evidence in reply of a conviction, for example, but if it is of probative value, nonetheless, then does it not just come down to a question of fairness?

MR GAME:   Just before I answer, my concession is probative value of proof of a forgery not probative value of allegations being put of a forgery ‑ ‑ ‑

GAUDRON J:   Well, I do not think we can do it that way.

HAYNE J:   If we take it down to the most concrete level which I think maybe is where we have got to get sooner rather than later, the prosecutor wanted to ask the accused in one form or another, “Did you commit forgery of Ms Fowler’s signature?” and the prosecutor wanted to ask that in a dozen different ways with a lot of forensic flourishes.

The accused would either answer “Yes, I did” or “No, I did not”.  If the answer was “No, I did not”, then there is no evidence to go to the jury that she committed the forgery.  If she answered “Yes”, apart from the surprise on her counsel’s face, there would then be evidence that would go to the jury that she had done a dishonest thing which was to be set against the evidence she had otherwise adduced that she was a person of unimpeachable character.  As I understand it, your complaint is the judge permitted the prosecutor to ask the questions and to ask them con brio and extenso.

MR GAME:   Yes.

HAYNE J:   That is the only area for debate, is it not, whether it was fair, without a voir dire, that is, without knowing that a positive answer would be given, to have all of these allegations paraded before the jury in the form of questions?

MR GAME:   Yes.  Could I just ‑ ‑ ‑

CALLINAN J:   And in circumstances in which the person making the allegation was not going to be allowed to give evidence.

MR GAME:   That is correct, your Honour, but that is a very important part of our argument, which is that if you have concluded that the evidence should not come in, then why should you allow the questions to be answered?

CALLINAN J:   And you are confronted with a negative answer.  It has absolutely no probative value at all ‑ ‑ ‑

MR GAME:   Yes, I accept that.

CALLINAN J:   The question then can only be prejudicial.

KIRBY J:   Except that fairness, like Janus, has two faces.  I mean, it is also fairness to the community and the prosecution represent.  But you are raising character ‑ ‑ ‑

MR GAME:   But, your Honour, can I just answer a question of Justice Hayne first.  I should mention, your Honour, that – I think it is in one of these passages here.  Defence counsel said very early in the piece, “The answer is going to be no, that she didn’t commit forgery”, and the judge recorded that.  So, that cross-examination, on the allegation of forgery, which was the framework of the cross-examination, was not going to get a concession from her.  As I said very early in this argument, it cannot be right to say maybe the witness will say, yes; maybe the witness will say, no; maybe the witness will exercise their rights.

HAYNE J:   You say that the answer was known and was going to be a negative?

MR GAME:   Yes.

KIRBY J:   And that the Prosecutor for the Crown just had to accept that and not test what you were saying.

MR GAME:   But, your Honour, in our submission, it cannot be right in the conduct of trials to put to an accused person allegations and the allegations ended up being, “Well, you know that Ms Wailes says that you said, ‘Close your eyes and do not look at this’.”, and so forth, but the cross‑examination was going to descend into the details of the forgery.  The jury never see the signatures.  The jury never see the documents.  A whole series of documents from the subpoenaed family law file are put in front of the witness.  It cannot be fair to conduct that cross-examination.  The judge said, “I’m not going to give any more rulings at this point” – sorry, he has not said that, he said that previously.  But it cannot be fair, in our submission, for a cross-examination to be conducted of that kind.

McHUGH J:   But why?

KIRBY J:   You make a very powerful point there, but surely fairness is a very elastic concept and it is for the ‑ ‑ ‑

McHUGH J:   The mere fact that your client is going say she did not seems to me irrelevant.  A jury is entitled surely to see her reaction in the witness box to the answer.  She might be shifty, she might be evasive.  The Crown Prosecutor ‑ ‑ ‑

MR GAME:   No, not at all, your Honour.  That is because that is what the cross-examiner thought he was going to do, but that is a cross-examination.  What you are contemplating there is a cross-examination on the question of credibility only, and that cross-examination could not have, as it were, substantial probative value when that cross-examination is being conducted to see what falls out.  What that means is:  I will throw the worst allegation at this witness; see what she says; see if she gets herself into a corner; see if she embarrasses herself.  That cannot be appropriate for a cross-examiner in a criminal trial to do it.

McHUGH J:   Why not?  I mean, these arguments seem to assume that juries are fools.  I mean, juries sit down with more common sense that you will find in most among barristers or among judges.  They have collective experience of the community.

KIRBY J:   Barristers I will agree with.

MR GAME:   Sorry, barristers are what?

KIRBY J:   I agree with the comment about barristers.

CALLINAN J:   Well, I have been one too recently to agree.

MR GAME:   Barristers have no rational powers whatsoever.

KIRBY J:   I am sorry, I interrupted Justice McHugh, he was making a point.

McHUGH J:   They are sitting there, they watch ‑ ‑ ‑

MR GAME:   I am sorry, they are overrated.

McHUGH J:    ‑ ‑ ‑ the witness, they hear the cross‑examination and they have a great sense of fairness about them, and if they think there is no substance in the cross‑examination, they will disregard them.

HAYNE J:   The Crown has not made it up here.  They have enough instructions to put it, have they not?

MR GAME:   But that hurts.

HAYNE J:   Surely.

MR GAME:   But, your Honour, the prohibition is on asking questions.  As I said before, the 1898 Act said “no witness shall be asked” and “shall not be required to answer”.

McHUGH J:   Yes.

MR GAME:   Now, in this particular case - and same with the New South Wales version - we have the same witness, we have similar conduct around the same time - and we have no test and those propositions are put to this witness as if they have some credibility to them.  What could be worse?  I cannot ‑ ‑ ‑

McHUGH J:   As Justice Hayne put to you, unless the witness either assented to it or by her demeanour gave the jury to think that there was substance in the questions that were put to her, they would disregard them.

KIRBY J:   That is the theory, but your point, I suppose, is that the smell of it will remain around to the end of the case.

MR GAME:   Yes, in Phillips’ Case Justice Deane spoke of “besmirching justice with the ugly stain of prejudice”, and that is what we say happened in this particular case.

McHUGH J:   Prejudice is one thing, but the fact that these questions are put - I mean, what has happened in trials?  Has the Crown to have its hands tied behind its back?

MR GAME:   Not at all, your Honour, but this is not that kind of case and if it were the kind of case where it was relevant to a fact in issue and not merely credibility, then the Crown should have applied to lead the evidence in their case and we would submit they would inevitably have been rejected.  It is not good at all, in our submission, to say, “Oh, well, they were just questions that were asked in cross‑examination of the accused and they did not get the answers ‑ ‑ ‑

McHUGH J:   They were questions that were asked, and which had some basis for asking them.  The judge gave leave.   He was referred to section 102, 104, 104(b) and 106 of the Evidence Act.  Counsel then appearing for the accused said that it would be unfair and that it had little probative value.  Now you get an incident in the trial and you come up here and you say that this is all unfair.  Anybody that has conducted trials knows that there are moments in trials when it looks like your case is totally destroyed and an hour later everybody has forgotten about it.  At the end of a case, it is just an incident.

MR GAME:   Not at all, your Honour, in our submission.  That is why the asking of these questions, in our submission, should be and is prohibited.  What happened in this case was not only did he have this thing which he was poking under the noses of the appellant, but he had a whole file of family law documents which he was putting to her, seriatim, in what would be in breach of section 44 of the Evidence Act, were it not for the fact that she had been forced to assert that Wailes had made the allegation.

McHUGH J:   Yes, I know, but Ms Fowler’s signature had obviously been forged by somebody.

MR GAME:   No, your Honour. No, not at all.  It could easily be a variation of her signature.

McHUGH J:   I thought your client assented in cross‑examination to something fairly similar.

MR GAME:   No, she said it looked different and that hurts, but it is not where it ended up.  It is what the prosecution is seeking leave to cross‑examine on.  You cannot say in this case they made a bit of mileage with respect to credibility.  They made no mileage at all with respect to disproving character, the likelihood of committing the offence.  They made some marginal headway in respect of making her look bad by putting documents in front of her nose alleging forgery.

KIRBY J:   When those documents, by the judge’s rulings and maybe by the Evidence Act, could not be adduced in evidence.

MR GAME:   Exactly.  Now this is not some little side wind that everybody has forgotten about half an hour later.  This is coming along with another set of allegations of another serious criminal offence, coming from the same witness and putting them to the accused, which has a particular bite when you are saying to this witness ‑ when the relationship between these two witnesses is something that the jury is going to be thinking about.  They are going to be thinking about why would a solicitor get her secretary to do this and then they hear that on 27 January, which is during the very period of this conspiracy, it is asserted, although it was asserted some months later, it is asserted according to the piece of paper that has been put under the nose of the appellant, that she committed forgery with her secretary present.  Now, no directions are going to take away the poisonous effect that that has on the ‑ ‑ ‑

McHUGH J:   Why?  The judge directed the jury.  You make no criticism of his directions, do you?

MR GAME:   No, your Honour, but we say that this is not a case where evidence is admitted for one purpose and the judge says do not allow it for another.  This is a case of prejudicial material which should not have been allowed to be put.  It is a bit like a Glennan Case or it is also a bit like the case, in some ways, of Gilbert, which the Court heard recently.  Who is to say the jury are going to take any notice of those particular directions that the judge gives in respect of what we submit is impermissible questioning.

McHUGH J:   Do not get me worked up about Gilbert.

KIRBY J:   Would you give me a reference to Justice Deane’s statement in due course.

MR GAME:   Yes, 159 CLR, Justice Deane’s judgment at page 60. 

CALLINAN J:   Mr Game, can you tell me where the cross‑examination is on the –with respect to the alleged forgery?  Just give me a page reference.

MR GAME:   Yes.  The cross‑examination with respect to the forgery is at pages 335 to 353 and it is in the second book.

CALLINAN J:   Is there anything in the Act about adducing secondary evidence of a document?

MR GAME:   Section 44, I think it is, your Honour.  Secondary evidence, sorry.  Section 48 deals with documents.  The questioning of witnesses and putting representations coming from other witnesses is, I think, to be found in section 44.

CALLINAN J:   The conventional cross‑examination would be, would it not, “Would you look at that document.  Do not say anything about the contents.”

MR GAME:   That is right.

CALLINAN J:   And “Look at that signature, is that your signature?”

MR GAME:   That is section 44.

CALLINAN J:   Anything more than that would be adducing evidence of unproved documents.

MR GAME:   Yes, quite.

CALLINAN J:   Is that permissible?

MR GAME:   No, we would submit not, your Honour, but because the judge had said that he would allow the cross‑examiner to put, as it were, this ‑ ‑ ‑

CALLINAN J:   Well, he may have done it, but I am just asking is it permissible?  I would have thought it might have involved impermissible adducing of secondary evidence of documents, subject to what the Act says.

MR GAME:   The question under section 44 is whether or not the witness had been – it says:

(1) Except as provided by this section, a cross-examiner must not question a witnesses about a previous representation alleged to have been made by a person other than the witness.

CALLINAN J:   This is 44?

MR GAME:   Yes, 44.

CALLINAN J:   Which part?

MR GAME:   It is in Part 2.1.  Then it says:

(2) A cross-examiner may question a witness about the representation and its contents if:

(a) evidence of the representation has been admitted, or

(b) the court is satisfied that it will be admitted.

The question is whether or not, and if so what, evidence of what representation had been admitted.

CALLINAN J:   No, but I am not talking about that.  I am talking about the document itself which was said to be the forgery.

MR GAME:   We would say that it is ‑ ‑ ‑

CALLINAN J:   It is not a representation.  There are provisions about documents in Part 2.2.

MR GAME:   Yes.  The representation may be contained in a document under subsection (3).

CALLINAN J:   Yes, but the forgery, if it was a forgery, the signature itself is not a representation.

MR GAME:   Yes, that is correct.

CALLINAN J:   So in other words, the jury has been told about a document and the contents in part of a document that they have not seen and they cannot see and they will not be going to see.

MR GAME:   Yes.

CALLINAN J:   Well, that is prejudicial too, is it not?

MR GAME:   Yes, we submit so, your Honour.

HAYNE J:   Is that something that you are entitled now to complain of in this Court?

CALLINAN J:   You objected to all of this, did you not?

MR GAME:   It does all relate to the grant of leave.  We were objecting to the cross‑examination on the allegation of forgery.  Whether or not we should have objected again question by question is, in our submission ‑ ‑ ‑

HAYNE J:   But the grounds that bring you here, are they grounds which extend to a complaint of the kind that you have now made?

MR GAME:   Your Honour, they do not really, but what I was going to say is that I did not intend to put it to the forefront, but (a) I was answering a question from Justice Callinan, but we say look at the questions and see what happened, and that demonstrates in a stark way that the exercise should never have been allowed to be conducted in the first place.

HAYNE J:   But your point must be that the Crown could not ask, “Did you commit forgery of the signature of Ms Fowler in family law documents?”.

MR GAME:   That is right, yes.

GAUDRON J:   But in the circumstances of this case wherein the allegation of forgery was made by the principal witness, you have to put that into account, was not proved by the handwriting evidence and the person whose signature it purported to be had not apparently said one way or the other whether it was forged and in which, I suppose, you are saying there was no means for you to cross‑examine anyone on the issue that was the subject of cross‑examination.

MR GAME:   Plus there is a high degree of prejudice to this particular evidence.

HAYNE J:   Why?

MR GAME:   Because it ‑ ‑ ‑

HAYNE J:   If the answer is no – let me take the bear question I have identified for it may test the point.  Let it be tested against the background of the several considerations that her Honour Justice Gaudron has just identified with you.  If the bear question is asked, “Did you forge the signature of Ms Fowler on family law documents?”, you say that question could not be asked.

MR GAME:   Yes.

HAYNE J:   Why?  What is the principle, or what is the provision which prevents the cross-examiner asking the question?  Let me add a further fact:  knowing that the answer that almost certainly will be elicited is a flat, “No, I did not”.

MR GAME:   Well, it is irrelevant under section 55.

GAUDRON J:   But your complaint really is about the prosecutor’s attempt in cross-examination to prove that she had forged the documents.

MR GAME:   Yes.

GAUDRON J:   That is your real complaint.

MR GAME:   To have a go at it, see if he could achieve it, notwithstanding the fact that he knew the answer was no.  To see if he could break her down, to see if he could get a confession from her.

McHUGH J:   Well, what is the rule with that?

HAYNE J:   That is what cross-examination is all about.

KIRBY J:   She was not on the charge of this offence.

MR GAME:   That is exactly right.  Everything is wrong with it.  If you could do that in a case, then you would have to accept the proposition that the Crown could lead a case in its case about that issue.  A moment’s thought ‑ ‑ ‑

HAYNE J:   No, the Crown might be bound by the answers it gets.  The Crown might end up with a very considerable slap in the face, in effect, by the accused as she gives her answers, straightforwardly and honestly, thereby buttressing her credit in the eyes of the jury.  It runs both ways.

MR GAME:   In the context of this case, it is highly unlikely to, and to speculate that it might work the other way is not a reason for admitting it.

McHUGH J:   Well, you are speculating it will work adversely to your claim.

HAYNE J:   You do not need to sit in trials long to see cross-examinations work to the singular advantage of the party whose witness is being cross‑examined.

MR GAME:   Yes.  But in this case, by asking the questions, you reveal a series of things.  You reveal that the signatures are different, you reveal that Ms Wailes makes an allegation, you reveal that Ms Wailes has the conversation taking place in a certain context as ‑ ‑ ‑

CALLINAN J:   And you assert that a signature, which the jury never sees, is a forgery.

MR GAME:   And the prosecutor says, “And this is what happened, is it not?”, and ‑ ‑ ‑

CALLINAN J:   He is flashing a document, as it were, that the jury cannot see and he is asserting that it is a forgery.

MR GAME:   Yes.  This is not the bread and butter of criminal trials.  This is something that does not happen normally and it should not happen normally.  It is not just the rough and tumble of the criminal trial.

HAYNE J:   Let me test that a moment, Mr Game.  The accused puts her character in issue.  She adduces evidence that “I am a person of unimpeachable character”.  Can the Crown make no attempt to break that down unless that attempt must succeed?  That seems to me to be the baseline of the proposition you are putting.  The Crown cannot try to break it down unless they know, that is unless the judge knows, the Crown will succeed.

MR GAME:   No, your Honour, unless an assessment has been made of the probity of that material such that it is ‑ ‑ ‑

HAYNE J:   What, it is likely to succeed, might succeed?  What is the assessment of probity that is the threshold before adducing?

MR GAME:   But, your Honour, that is why you would have a voir dire to assess ‑ ‑ ‑

HAYNE J:   I understand that.  What is the test on the voir dire?  The judge decides what, probably will succeed, may succeed, jury might accept?  What is the test?

MR GAME:   Well, if you are simply concerned with cross‑examination of the accused, you would have to be satisfied that it would be likely to succeed in the context.

HAYNE J:   I see.  So the judge takes the decision that more probably than not the attack on the accused’s character will succeed.  It seems a large proposition.

MR GAME:   But, I am sorry, the answer is ‑ ‑ ‑

GAUDRON J:   But are they the right questions anyway because, if one goes back to 112, the general rule is that the defendant is not to be cross‑examined unless the judge gives leave.  The question is, “What considerations should inform the trial judge’s giving of leave?”

MR GAME:   That is the whole question in this case.

GAUDRON J:   And, certainly, one consideration on your argument was that – was not, rather, that the prosecutor was bound to raise these questions, that being the basis on which the trial judge said, “I am going to give leave,” or it seems to me on reading the ruling to be the basis on which leave was granted.

MR GAME:   Quite.  We say at that moment the discretion miscarried and a lot of things flow from that, but that does not answer the ultimate question.

GAUDRON J:   No, because then it must be for this Court to decide whether, on your argument, given that the discretion miscarried, was there any miscarriage of justice, and you have to raise your unfairness in that area, have you not?

MR GAME:   What we say about that is this, that it is put against us that House v The King would leave this Court in the same position to make an assessment for itself and we say there may be evidence that has to be assessed and that means that if another possible view would be reached of the evidence, then applying Graham v The Queen then ‑ ‑ ‑

GAUDRON J:   No, no.  Is that the question?  I mean, I know the questions tend to be put in that way, but is the question not miscarriage of justice?

MR GAME:   The question is a proviso – if we establish error, then the question the Court has to ask is whether or not the Crown has satisfied you that there is no substantial miscarriage of justice, if we establish the error.  The only way in which we ‑ ‑ ‑

GAUDRON J:   That is right, and so your unfairness and all your ‑ ‑ ‑

MR GAME:   Yes, that is right, in the context ‑ ‑ ‑

GAUDRON J:   ‑ ‑ ‑ lack of substance to the allegations come in in terms of, well, you cannot say that there was no miscarriage of justice.

MR GAME:   That is correct, your Honour.

KIRBY J:   What would have been the position if, for example, your client had been charged with forgery but the trial had not come on, or had been found guilty of reprehensible professional conduct but there was an appeal?  I mean, there are a whole series of possibilities that can occur, short of a conviction.  Now, what is to happen there if the Crown asks to cross‑examine at that stage?

MR GAME:   As I said before, if she had been charged with that offence there would inevitably have been a separate trial.

KIRBY J:   I realise that, but what if she had then propounded, in each separate trial, good character, and this one came on before the forgery trial, is she allowed to go into that and assert good character and the Crown is forbidden from saying, “Well, steady on, there is another case in the wings waiting to be determined?

MR GAME:   Well, we would say so.  I mean, the reverse side of that is that she loses her separate trial, if she wants to raise good character, is the result of that particular conclusion.

KIRBY J:   What about a finding of professional misconduct by the relevant committee?  It probably would not happen, in the practicalities, because they would wait until the criminal process was finished but here there was a finding by this person, a somewhat unsatisfactory finding in the way it is made, but that may be because of the powers that person has.

MR GAME:   I think one could not place too much reliance on the finding.  One would have to look at the evidence that supported to find ‑ ‑ ‑

GAUDRON J:   Was there a finding by the Law Society, at the end of the day?

MR GAME:   No, this is an investigator’s report.

GAUDRON J:   Yes.

MR GAME:   They did not proceed with the allegations against her.

KIRBY J:   I hope that is not new evidence.  I am going to completely put my hand over my ears and I do not want to hear any fresh evidence since you argued so successfully in Eastman.

MR GAME:   I am prepared to argue anything, it seems, but ‑ ‑ ‑

CALLINAN J:   Subject to what the statute says on special rules, in general, the law leans against collateral inquiries for all sorts of obvious good reason.  I mean, of course, it is affected by the conduct of a trial and the statute but there is a general disinclination against it for good reason, is there not – collateral inquiry?

MR GAME:   Yes.

KIRBY J:   And especially in criminal trials.

MR GAME:   Yes, and with respect to credibility, section 106 cuts down collateral inquiries to a very small group of situations.  I mean, in this case there was no other evidence but it is not hard to posit a situation where the ‑ ‑ ‑

CALLINAN J:   You end up with another trial, a new trial.

MR GAME:    ‑ ‑ ‑ the accused then leads evidence from her handwriting expert and then the Crown leads a case in reply to that and then the accused, because that is the Crown case on handwriting, then leads a case in reply to that and it is not hard to posit that actually – and it is not unrealistic to posit that if you allow this exercise to happen you have a case in reply to a case in reply.

McHUGH J:   That may or may not be, but you say the discretion miscarried.  I would like to hear you why.  I take a quite opposite view to Justice Gaudron about the question of the Crown’s obligation.  I would have thought the Crown Prosecutor would be remiss in his or her duty if the accused raised good character and the Crown Prosecutor is sitting on this report and did not seek leave to attempt to cross‑examine the accused.

MR GAME:   But, your Honour, that is not the question with respect to the judge’s exercise of discretion whether the Crown would be remiss in seeking leave.

McHUGH J:   No, but his Honour said, “seized as it is with the material, it seems to me the Crown would be obliged to put these matters.”

HAYNE J:   Do you challenge that?

MR GAME:   Yes, we challenge.

HAYNE J:   Well, why is it not right.  The Crown is seized of information to the contrary of the case or the argument advanced by the accused.  Why is the Crown not bound to test it?

MR GAME:   But your Honour, the Crown may be obliged to seek leave but that is an entirely different question.  This sentence just simply skates over the whole – it is one thing to say the Crown should seek leave but this seems to be positing that the Crown would be bound to put those matters to the accused.

McHUGH J:   Yes, if it is given leave, why not?

MR GAME:   If leave is granted?

McHUGH J:   Yes.

GAUDRON J:   But the question is does that mandate the grant of leave?

McHUGH J:   Well, I do not think that that is the reason of the learned judge at all.  He has made that statement that the Crown would be obliged to put them and then he goes on and he gives leave.  I mean, one of the problems in these cases is that we do not have a transcript of the argument.  The judge gives a ruling in the middle of a case, then we have a completely different set of counsel who come up here, probably with a completely different argument.  Counsel who then appeared does not seem to have referred to section 112, does not seem to have referred to section 110 and to complicate matters, it is all done in advance, before the witness is in the witness box and the trial judge’s ruling is preliminary.  He says “subject to further developments”.

MR GAME:   But, your Honour, I do not know how to answer all of those things but when he says “would be obliged to put” he is putting “obliged to put” as if that is a factor favouring the grant of leave.  It is not a factor favouring the grant of leave.  It has nothing to do with it.

CALLINAN J:   Just keep in mind that there might be another view about that report, too, that it is not worth the paper it is written on.  That is one possible view of it in my opinion.

MR GAME:   But, your Honour, I mean I really have not made very much progress it would seem because I am at page 111 ‑ ‑ ‑

McHUGH J:   You have obviously made some progress with some of my colleagues.

KIRBY J:   You have made a little progress with me.  Do not lose heart.

HAYNE J:   Do not lose sight of principle either.

GAUDRON J:   The question is, is it not, there is a prima facie rule, prima facie a defendant is not to be cross‑examined about evidence of character, or would seem to be the rule, unless the court gives leave.  What is to govern the exercise of leave?  We know in section 198, do we - - -

MR GAME:   Section 192.

GAUDRON J:   Section 192, that there is to be regard to certain matters.  That does not seem – I have not yet found it again but that does not seem to constitute a code of what matters are to be taken into account and what are not.

MR GAME:   No, but it is obligatory, subsection (2).  They have to take into account those things.

GAUDRON J:   Yes.

MR GAME:   And the particular weight ‑ ‑ ‑

GAUDRON J:   And they do not seem to have been taken into account.

MR GAME:   No, precisely.

GAUDRON J:   Well now, when we come to the discretion, how do we have regard to those matters?

MR GAME:   You do not have to, in stating principles or in deciding this particular case?

GAUDRON J:   At least in deciding this particular case, I think one obviously has to have regard.

KIRBY J:   It is wrong to say, is it not, that we re-exercise the discretion?  We merely identify error and then you consider the question of the exercise of the discretion on the Crown’s submission that though there was error, there is no miscarriage of justice.

MR GAME:   Yes, that is correct, that is correct.  That is the correct analysis, we would submit, yes.  Sorry?

GAUDRON J:   Now, one of the questions that is exercising my mind, Mr Game, is do you say that in the circumstances of this case, and I think you do, the judge should have had regard to the nature of the report that was in the hands of the prosecutor?

MR GAME:   Yes.

GAUDRON J:   And also, was it drawn to the trial judge’s attention that the Law Society had not acted on the report?

MR GAME:   Yes.

GAUDRON J:   That was in a period of four years, had failed to act on the report?

MR GAME:   Yes.

GAUDRON J:   Had it made any ruling at the end of the day about anything?

MR GAME:   The prosecutor said to the judge – I mean, I can locate it a moment – but he said, “The Law Society inquiry is going nowhere”, are I think are the words that ‑ ‑ ‑

KIRBY J:   But that could have been awaiting the outcome of these proceedings.

MR GAME:   It is possible.

GAUDRON J:   Awaiting the outcome of what the prosecutor might get out of cross‑examinations, perhaps.

MR GAME:   There was a bit of re-examination on it, I think, to the effect that they had not taken any action in respect of this against her.  It is in the supplementary appeal book, I think.  I will just see if I can turn it up.

GAUDRON J:   But I am asking was the trial judge made aware of this at the time?

MR GAME:   Sorry, you are asking me a completely different question, yes.  Yes, sorry, it depends at what time because things changed.

GAUDRON J:   When he made the ruling at page 111.

MR GAME:   Yes, he certainly knew that at some point.  Whether he knew the precise answer to that question in respect of the Law Society ‑ ‑ ‑

GAUDRON J:   You say it is a matter to which he should have had regard when exercising a discretion.

MR GAME:   Absolutely, yes.

GAUDRON J:   Is there anything else to which you say he should have had regard in this case?  The fact that the ‑ ‑ ‑

MR GAME:   The witness?

GAUDRON J:    ‑ ‑ ‑ that the defendant or accused was not going to be able to controvert those matters, not easily going to be able to controvert them?

MR GAME:   Yes.  We have outlined some of the matters in paragraphs 7 and 8 of our reply, your Honour, but that is ‑ ‑ ‑

HAYNE J:   Are those matters that go to the exercise of a discretion under 112 or under some other section?

MR GAME:   We have tried to delineate them:  7, with respect to credit, and paragraph 8, with respect to 112.  But the considerations are similar.  We have tried to ‑ ‑ ‑

HAYNE J:   Can I take you to 112 and just understand it?

MR GAME:   Yes.

HAYNE J:   It speaks of cross-examination “about matters arising out of evidence”.  What does the expression “matters arising out of evidence” mean on your submission?  Is it to be equated with “cross-examined about” being generally of good character?

MR GAME:   Yes.

HAYNE J:   It seems to me that that is a difficult verbal consequence to draw from “about matters arising out of evidence” and there would be much easier ways to put it but, as I say, as you might gather, I do not find this Act at all easy.

CALLINAN J:   Or attractive.

MR GAME:   Well, your Honour, the short answer is that is the way in which we thought that this section should be construed.  We do not question that there are difficulties with that particular – could I just refer the Court to the Law Reform Commission Report No 38, page 101, paragraph 178?  It says, “One commentator pointed out ‑ ‑ ‑

GAUDRON J:   This is the Commonwealth’s?

MR GAME:   Yes:

One commentator pointed out –

this is paragraph 178:

that the law in all jurisdictions but one requires that leave be sought by the –

I am sorry, your Honours.  It is 178(a) – I will not read it out aloud.  That is all there is.  Now, the question, coming back to your Honour Justice Hayne, raised, the words “matters arising out of evidence of a kind”, it is possible that that cuts down what the cross-examiner ‑ ‑ ‑

HAYNE J:   “Matters arising out of” to me has a flavour of going one step further than the subject matter in issue, the subject matter in issue being character, and matters arising out of character seem to me to be a step beyond the relevant subject matter.  But I would be glad of any assistance that counsel can give me about how it might operate.

MR GAME:   It constrains what the cross‑examination will be about, so, if it is about “matters arising out of”, then that is a broader scope of things from which you need leave.  So that if it is any matters that arise out of that, then you need leave.  So it includes character but, on the interpretation your Honour has put, it could in fact be a broader requirement for leave.  You might need leave for more things than ‑ ‑ ‑

HAYNE J:   I will not delay you further on it, Mr Game.  The question that provokes in me is:  then what is “evidence of a kind referred to in this Part”?  That is, what is the subject matter?  As I say, I do not want to delay or divert the argument, but it does trouble me.

MR GAME:   The “evidence of a kind referred to in this Part” must be evidence of good character.  “Evidence adduced to prove” “good character”.

HAYNE J:   Or “evidence adduced to prove” “not” “of good character”.

MR GAME:   Yes.

McHUGH J:   But some indication that 112 is to be given a wide meaning in terms of the prohibition comes from 110(2), does it not?  If your client leads evidence of good character, then the hearsay rule, the opinion rule, the tendency rule, the credibility rule, do not apply to evidence adduced to prove that she is not generally a person of good character.  What would be there to stop the Crown in this case having called Mr Owen in reply to say that as a result of his investigation he had formed the view that she was not a person of good character?

MR GAME:   The opinion rule has gone, but the probative ‑ ‑ ‑

GAUDRON J:   That might not be nearly as unfair to the defendant as the cross-examination of the defendant because you could at least ‑ ‑ ‑

MR GAME:   There would be discretionary considerations, but ‑ ‑ ‑

HAYNE J:   Where exactly?

MR GAME:   Section 137 would be the discretionary provision that would apply to that.  But it would seem a remarkable result that you can – the reason why the opinion rule is gone is because part of character, presumably, is to say “It is my opinion that this person is a fabulous fellow and that he would not commit an offence of this kind”, not to cut out evidence from an assessor that he has come to a particular view about – I am not doubting the accuracy of the proposition your Honour has put to me, but I think they must have had something different in mind than that particular situation in this case.  In fact, Stirland, which I will not take the Court to, is a case where what was being put was “You know that there are allegations against you that you ‑ ‑ ‑

McHUGH J:   Is this the case in 1944 ‑ ‑ ‑

MR GAME:   Yes.  That is ‑ ‑ ‑

GAUDRON J:   Could we have the reference?

MR GAME:   In (1944) AC.

GAUDRON J:   Page?

MR GAME:   Page 315.  I will take you to it.  The passage is at 324.  Stirland is different than this case because they were questions about whether or not he had been suspected of other particular offences.  This is at 324:

Questions whether his former employer had suspected him of forgery were not, therefore, any challenge to the veracity of what he had said.  Neither were they relevant as going to disprove good character.

Then I am leaving out a sentence, but:

They should not have been put, and, if put, should have been disallowed.

And that is that passage at 324 in the speech of the Lord Chancellor.  So it is a different sort of case, but it is also in an entirely different statutory context because it concerns the construction of section 1(f) and what “charged” means in that particular statutory context, but it ‑ ‑ ‑

McHUGH J:   Anyway, I suppose you rely on that passage that there is a judicial pronouncement that such a question would be not fair to him.

MR GAME:   Yes.

CALLINAN J:   And then it said what Maxwell’s Case decided ‑ ‑ ‑

MR GAME:   I am sorry, your Honour.

CALLINAN J:   ‑ ‑ ‑ that if:

the prosecution had enough evidence to indict a man for a crime, but not to convict, no questions can be asked about that incident at a later trial at which he puts his character in issue –

Now, that is a consideration that is not rendered irrelevant by the Evidence Act, is it?

MR GAME:   It is or it is not?

CALLINAN J:   Is not.

MR GAME:   It is relevant.

CALLINAN J:   That is a statement that has some relevance, even in the statutory context in which we are here.

MR GAME:   Yes, your Honour, yes, we would put so, yes.  I should mention, just coming back to your Honour Justice Gaudron’s questions about matters relevant to leave – and I think this was contemplated by what was put ‑ that the fact that the source of the allegation is Ms Wailes is a relevant consideration with respect to the grant of leave.  The Court of Criminal Appeal, and contrary to the trial judge, appears to have thought that it was an allegation that could be extracted from the documents themselves.  That is not the case.  We strongly contest that such a conclusion can be drawn.

KIRBY J:   Though you deny it, it does seem as though you really are urging on us a sort of rule of law that in the exercise of the discretion for which the Evidence Act provides here to give leave or not, it will never be a proper exercise of leave, the evidence of the collateral event being excluded to permit cross‑examination.

MR GAME:   We do not put that ‑ ‑ ‑

KIRBY J:   Well, it seems – I know you say you do not do it but it seems to come very close to that.

GAUDRON J:   Well, you do not say that; you say that at least the trial judge has to have regard to the nature of the material - I will not call it evidence because in the end it is not evidence in the trial – which provides the foundation for the cross‑examination.

MR GAME:   Yes, your Honour.

GAUDRON J:   In this case there does not seem to have been any examination of it other than ‑ ‑ ‑

MR GAME:   Exactly.  There was ‑ ‑ ‑

GAUDRON J:   The only thing seems to have been, well, the prosecutor is bound to raise it.

MR GAME:   Yes, your Honour.  Now, I need to take the Court to some other passages but if I just go back to 111, one sees there – and this relevant to what later happened – the prosecutor thought that this only went to credit at that point.  We see later that this emerges to have some significance later.  He thought it went to credit only – that is section 102 – to cross‑examination of the accused and 106, that he would be bound by his answers.

Now, one then moves from this judgment to a later point in the trial.  I will just mention it.  At page 187 there is a passage where they are arguing about what is in the transcript and Mr Skinner said:

my friend said he wasn’t going to use the report, he was just going to put the actual documents in front of my client.  He was not going to rely on any opinion of anyone.

Now, then we come to the supplementary appeal book at page 11 and this is still in the Crown case.  It is on 3 March.  At this point the police officer at appeal book 205 has been cross‑examined, we would submit, to raise the accused’s character.  He has been asked if she is known to the police and if she has any convictions and he says no.  Then the prosecutor at supplementary appeal book page 11, this is transcript 255, says – and as I said this is still during a prosecution case but he is now saying:

I will be making an application to call evidence in reply and that evidence will be the evidence of Glory Mae Wailes.

Then he now refers to section 110.  He says:

there is no provision expressly requiring me to get leave before adducing positive evidence of bad character -

That is true.  Section 110 is not a leave provision although there are provisions, discretionary powers to exclude it in reply and then he says:

Incidently, your Honour, your Honour will recall all I said on –

and we put some weight on that –

all I said on the last occasion is that I didn’t propose to cross-examine her on the opinion of the handwriting expert.

So, he is not constraining himself in terms of his cross-examination.

KIRBY J:   This is before the ruling when the judge said, “I am not going to let you adduce evidence”.

MR GAME:   That is right, but he is now foreshadowing, in the prosecution case, calling a case in reply.  Not calling a case in his case, but calling a case in reply.

KIRBY J:   Well, he did not do that.

MR GAME:   No, but, your Honour, the judge did not tell him that he could not do that until after the accused had gone into evidence.  So, at that moment, when the accused went into evidence, the accused would have thought that there was a risk that there would be a case called in reply and leave had been given to issue short service of a subpoena on Mr Anderson to get him to court to give evidence, so it was not just going to be Ms Wailes, it was going to be Ms Wailes and Mr Anderson.

GAUDRON J:   Is he the handwriting expert?

MR GAME:   Yes, he is the handwriting expert.  So the defence were under forensic threat.  Once they got into their case, they had the original ruling and they had the threat of a case in reply from Ms Wailes and from Mr Anderson.  So, he goes on:

all I said…..I didn’t propose to cross-examine her on the opinion of the handwriting expert.

Then he said:

It is conceivable that his evidence will also be allowable as positive evidence if he was here.

This is all now going to – this is section 110.  This is not merely credit, obviously, this is going to – it could not get in on credit under section 106.  This is the Crown leading the case to rebut the tendency evidence that the accused led, of her good character.  Is that an appropriate moment, or shall I press on?

GAUDRON J:   Have you finished the point?

MR GAME:   I will just finish this page.

GAUDRON J:   Yes.

MR GAME:   We would say that the context in which this is taking place is he now realises that character has been raised in the prosecution case.  Then Mr Skinner then says:

I was really seeking an advance ruling.  I in fact said the words “I want to know where I stand”…..I wanted to know where I stood in relation to the Crown too. 

Then the Crown Prosecutor said:

I say by way of exoneration by what I was doing I didn’t seek to rely on anybody’s opinion.

That is the extent of the concession.

Now then, we go from there to the next passage and that is an appropriate point to stop, if that is convenient, your Honour?

GAUDRON J:   Yes.

KIRBY J:   Do we have the District Court Rule under which the preliminary ruling was made, is that somewhere?

MR GAME:   This preliminary ruling would – the District Court Rule makes provision for rulings to be made prior to arraignment – prior to empanelment of the jury, so it makes provision – I was wrong when I said prior to arraignment.  It contemplates that an accused person would be arraigned, but in the absence of the jury, so that a plea will be taken ‑ ‑ ‑

KIRBY J:   This is very common in Australia now, it exists in all the States.  But do we have the rule?

GAUDRON J:   Yes, could you make a copy of the rule available after lunch?

MR GAME:   We will find the rule, your Honour.  But it is not concerned with this case because the jury had been empanelled in this case.

KIRBY J:   No, I understand.

GAUDRON J:   Yes, we will adjourn now until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GAUDRON J:   Yes, thank you, Mr Game.

MR GAME:   Thank you, your Honour.  I have a few more transcript references to take the Court to but before I do that, we have copies of Part 53 of the District Court Rules, if I could provide those to the Court.

KIRBY J:   If the procedure that was adopted was not under that Part, was it just under the powers of the general powers of the judge to conduct the trial?

MR GAME:   Yes, your Honour.

GAUDRON J:   And it is a common practice?

MR GAME:   Yes, and I ‑ ‑ ‑

HAYNE J:   But you need specific authority to do it because otherwise there is difficulty, is there not, about giving a ruling until the accused is in the charge of the jury?

MR GAME:   That is why this Part 53 is brought in.

HAYNE J:   Yes.

MR GAME:   If I could just take the Court briefly to that.  Part 53 – this was brought in in 1987.  Part 53, rule 10 refers to pre‑trial applications and they are made on notice of motion.  Part 53 rule 10(2)(j) refers to:

for an order under rule 11(1).

It says for an order under rule 11(12), it does not say for a ruling under rule – so you would say on your notice of motion:  seek a ruling with respect to the admissibility of a confession, for example, or an order that an inquiry – I am sorry, you would seek on the notice of motion an order for an inquiry into the admissibility of confessional evidence, for example.

Then you would go to rule 11.  Now, rule 11 does not actually say anything about notices of motion but rule 11 simply says:

The Court may order that an enquiry by way of a voir dire into the admissibility of any evidence or as to the capacity of a witness to give evidence he had, before the trial Judge, at any stage of any proceedings whether before or after the jury is empanelled.

Then, rule (2) is the rule that gives jurisdiction:

Before commencing any enquiry ordered under subrule (1) the Court shall require the accused person, if he has not already pleaded to the charge against him, to so plead.

In the footnotes there, there is a reference to a case called Bailey 36 A Crim R 30. Now, in Bailey, the Court of Criminal Appeal ruled that the entire voir dire was a nullity, in effect, because the accused had not been arraigned prior to the conduct of the voir dire.  That is the procedure and it is not necessarily – I am not quite sure how it works in practice but it does not necessarily contemplate that the ruling even be by the trial judge but that is not a matter that we have to address today.

KIRBY J:   Is there a similar rule in the Supreme Court?

MR GAME:   No, your Honour.

KIRBY J:   So there are no pre-arraignment hearings in the Supreme Court.

MR GAME:   I have conducted them, your Honour, but now I cannot remember on what – we have arraigned the accused and then conducted the inquiry.

KIRBY J:   The problem with that is the jury is in waiting.

MR GAME:   Yes, the jury is in waiting but the jury have not been empanelled at that particular point, but historically speaking the point about this is that it was thought that you could not conduct a voir dire hearing until you had a jury empanelled, therefore, you would empanel the jury and then you would have a two week voir dire and then you would say, “Well, nice to meet you, members of the jury, and now we are about to start.”

McHUGH J:   Well, there may be some doubt as to the validity of that rule.

MR GAME:   There may be some doubt about it, but that is – the view is certainly taken that there was a problem in that respect.  Our point about that is that the legislature specifically has encouraged in this context, in so far as possible, issues of admissibility to be determined prior to the hearing of the trial and they concern any ruling as to evidence or as to the capacity of a witness. 

Now, if I could come back to some transcript references.  At 205 lines 50 to 55 – in terms of sequence that is before the transcript reference that I just took your Honours to in the supplementary appeal book page 11.  That is at page 236 transcript.  It is appeal book 205.  It is the question asked of the detective:

Q.  My client is not known to the police, is she?  She has no prior convictions at all to your ‑ ‑ ‑

McHUGH J:   I am sorry, what page is this?

MR GAME:   Appeal book 205.  What I was saying was that in chronological terms that is before that application that was made that was at supplementary appeal book 11 that I just referred to before lunch.  Now, in my experience – and that is a way of putting character in in the prosecution case.  It may not go so far as to establish all one needs to establish but it is done for the distinct purpose of putting character in in the prosecution case.

Now, in appeal book 209 there is a further exchange and this is on the following day.  The one I took the Court to at supplementary book 11 was the afternoon of the day before but it is still in the Crown case.  The prosecutor is now talking about – he said:

I would be bound by any answers –

and he was thinking in terms of – this is at line 20 on 209 – he is obviously thinking of section 106 and he said:

That concession was of course wrong in view of the provisions of s. 110 –

He says:

gives me a positive right to call evidence either ss. 2 or ss. 3 contradicting the evidence of good character that has already been led by my friend from Detective McGillicuddy.

Then the prosecutor said:

Now, if that was sufficient to raise character then I would in principle be entitled to cross‑examine the accused upon that material but also call positive evidence both from Ms Wailes and from Mr Chris Anderson…..I have in court a subpoena.

Then he goes on, line 47 refers to allowing “me to call” a case “in reply” and then at lines 50 to 55:

The issue I suppose is if your Honour thought that what I said earlier in the trial misled my friend into leading that positive evidence –

which is a reference to the cross‑examination of the detective –

then no doubt that would have a bearing upon the way your Honour approached that issue.  What I said was clearly wrong but that’s not the issue.

HIS HONOUR:  The problem is with these things, I have said on a couple of occasions, I have been asked to rule in advance in respect of issues that may come up or have been sort of referred to and it strikes me that’s generally not a good way to approach the task.  One generally takes this view, Mr Crown, that the parties make their own estimates of how things are going to go and prepare their cases accordingly and if they think that a course might be followed that they may need to call witnesses then they make the necessary arrangements.

In effect, what he is saying is that he is not going to make any more pre‑trial rulings.

KIRBY J:   He says at 25 or so:

that I don’t want this jury to be put in the position of making a decision, as it were, as to whether or not the accused is guilty of some other offence based on material that is put before this jury.  It strikes me that this could lead to a very awkward situation –

So he is obviously alert to the danger of ‑ ‑ ‑

MR GAME:   Yes, your Honour, but he is now addressing himself to the prosecutor’s application to lead a case in reply – still in the prosecution case and now in circumstances and still, obviously enough, before the accused has given evidence.  But in lines 12 to 25 where he is suggesting that character may not have been raised, we would say that that is incorrect.  But he is offering the accused an out, we would submit, and he is saying to the accused, in effect, things could only get worse.  That is the substance of the communication that is taking place there, in our submission.  The prosecutor then says:

All I seek to do is reserve the position.

Then he gets short service for a subpoena.

at the very least an opportunity to make my application for leave to call him in reply without having actually called him, having him waiting outside –

So he has got the short service of the subpoena.  If I just go back very briefly to – there is a passage at supplementary appeal book page 11, lines 30 to 32, where the prosecutor outlined what he wanted to do and the judge had said:

You have forecast the approach you are taking.  I don’t think it is appropriate to make a decision until the opportunity arises to do so.

So when you couple that with what happened at 209 and following and particularly that passage I read at the top of 210, the effect of it is the judge is saying, “I’ve given one ruling but I’m not going to give further rulings on this issue until at some specific point”.

So at this point, the accused is in the position where he has an adverse ruling in respect of cross-examination of the accused and he has the threat of a case being called in reply, both from Ms Wailes and from Mr Chris Anderson in respect of whom short order of a subpoena has been given.

KIRBY J:   Who was Mr Fisher, the calling of Mr Fisher that is objected to?

MR GAME:   It has nothing to do with this.  It is a side issue.  The Crown sought to lead evidence late in the case that the car was worth a lot less.  It does not matter, it was rejected.

GAUDRON J:   Mr Anderson is the handwriting expert.

MR GAME:   Mr Anderson is the handwriting expert that you were taken to before.  So, that is that for the time being, and then we go to appeal book 2, page 246.  There is the evidence that is led from the accused.  It has been set out in our friend’s submissions.  I will not read that out, but there is the evidence on page 246.  That is on 4 March.  Then at page 271, the prosecutor says, and this is at the close of the day’s evidence:

I propose to renew my application in different terms in the morning to call in reply; namely, the handwriting expert and Ms Glory Mae Wailes.

This is something that is both foreshadowed during his case and now during the defence case.  Then, at page 272, the following day, the “Prosecutor sought”, bottom of the page, the prosecutor indicated that Mr Anderson was available and he proposed to call Ms Wailes.  He said, “Well, Ms Wailes was not cross-examined on that material”, which, we would submit, is an inversion of what has really taken place.  Then, on the next page at line 10, he seeks leave to cross-examine the accused with “30 copies of the signature J Fowler”, and he wants to call Ms Wailes.  Then, Mr Skinner says, and this is a passage that we do rely upon and we submit that it is reflected by all the passages that I have taken the Court to previously:

(Mr Skinner submitted that this was a situation entirely of the Crown’s making and it was entirely appropriate to deal in chief with the matters that he knew his client would be asked about in cross-examination –

and we submit that that is an accurate characterisation of what occurred.

KIRBY J:   But that is conceding that all of this is admissible.

MR GAME:   No, it is not, your Honour.  All it is conceding is that it was an inevitable consequence of the original ruling that the prosecutor would be entitled to cross‑examine on the forgery allegations coming from Ms Wailes and Mr Skinner was doing no more than the circumstance necessitated.  You will recall I took the Court to a passage when the prosecutor was at pains to say, “All that I said that I would not do is put the opinion of the witness”.  He was saying, “I am not saying I will not do this and I will not do that.  All I am saying I will not do is I will not put to you, you know the handwriting expert says X or you know that Mr Owens, the man from the Law Society, says Y”.  So we submit that in so far as it is put against us – and it is put as a principal argument against that this was problem of our own making – a careful examination of the material demonstrates that that is not true. 

Now, we then come to the judgment.  Of course, the judgment is too late in respect of any question about cross‑examination because the examination has taken place and this is an application to call the case in reply, but it is of some relevance – it is too late in a sense – but it is of some assistance to see some of the things to show, in our submission, how the exercise of the discretion that took place earlier in the trial miscarried.  At 276 there is the passage:

The Crown relies on s. 46 –

that is line 20 to 25.  Then 277, some of the history is recounted.  Then page 279, lines 20 to 25:

But the material presently being discussed is, in effect, the report of a Law Society investigator containing a recommendation for some sort of proceedings to be taken backed by the statutory declaration of Ms Wailes and the handwriting expert’s opinion.

At the bottom of the page his Honour referred to it as a “collateral matter”.  Then at 280 he talks about the material and he said:

As I have said earlier, there is no real concrete evidence that establishes a forged signature by the accused other than the possible evidence of Ms Wailes and the handwriting person’s evidence which, as I have said earlier, is certainly not very strong.

If that is all there is, in our submission, and bearing in mind that he has heard evidence in the trial and he had heard this evidence before the first application was made from Ms Wailes that she was a co-conspirator, that she had co-operated with the police, her co-operation had been taken into account and she had been sentenced after she had made this statutory declaration.  It is hardly a strong situation in terms of giving leave to cross‑examine.

Our point about all of this is that had he correctly addressed himself to the discretion in the first place and examined the probity, as we put it, of the material, then we submit that he inevitably, or highly likely, would have come to the conclusion that the cross-examination should not be admitted.  That is the use that we make of this particular material.

That brings us to the conclusion of the rulings, and there is only the cross-examination left, and I will not take the Court through the cross‑examination.  I have really highlighted the particular matters that we refer to in that regard.  Having taken the Court through that transcript, those are really the substance of the matters that we wish to put to the Court in our submissions.

GAUDRON J:   Thank you, Mr Game.  Yes, Mr Buddin.

KIRBY J:   Can I just ask:  what about the point of splitting the cases?

MR GAME:   Your Honour, the point about splitting the cases, and the time of the ruling is critical.  But our point is this:  if the evidence is not going to be – the Crown should have made application to - if the evidence was to be admitted at all, the evidence went to an issue.  It went to an issue concerning rebuttal of character.  If the evidence was to be admitted at all, and the Crown was foreshadowing it in his case, if it were to be admitted, it would have to be admitted, in our submission, on the Crown case.  One inevitably concludes that it would not be admitted, in our submission, which is why, to a degree, that point drifts away.

But our point - and I have made this point more than once -  if you are not going to admit the evidence in the trial, our submission is you would hardly admit an exercise that entitles the cross-examiner to seek to adduce evidence to prove that, possessed of the report, possessed of the material upon which the prosecutor relies, seeking to establish that allegation through the means of cross-examination of the accused.  We have specifically referred to the splitting of the case as being one.  The time at which the application is made is obviously of significant importance in terms of the exercise of discretion under section 112.

KIRBY J:   This particular aspect of the matter was not run in the Court of Criminal Appeal I think.

MR GAME:   No, your Honour.

HAYNE J:   At the end of the day, what evidence went to this jury that the accused had committed forgery?

MR GAME:   There was no evidence that the accused had committed forgery.  But there were a series of questions asked, quite a long series of questions, putting chapter and verse of specificity of what that allegation was with ‑ ‑ ‑

HAYNE J:   But in the end, the jury, properly instructed, and attending to the instructions of the trial judge, could have concluded only there was no evidence of forgery.  Is that right?

MR GAME:   It depends how they reasoned, because they know that there is an allegation of forgery coming from this witness.  They know that the accused has conceded that the signatures do not look similar.  They know that there is something fishy about what happened in relation to this particular document and they know that there has been a suggestion that Ms Wailes may have herself forged the documents.  The prosecutor has had in his hand this document which I have referred to, and he has the Family Court file.  If one looks, for example, at page 338, there he is going through the Family Court file, cross-examining on documents in the Family Court file.

Unless he gets a concession that she has committed forgery it has absolutely no relevance to the likelihood of guilt and in so far as it goes to credibility, in our submission it is marginal, to say the least.  The cross‑examination contains positive assertions.  For example, if one looks at 340, line 31, the prosecutor says:

A. It doesn’t look like the other signatures.

Q. No it doesn’t, does it.  It’s not like the signatures you’ve just been shown?
A. No.

Then he is shown the affidavit at 340.  Later on – I will just pick up the transcript reference to this – he is actually shown Ms Wailes’ affidavit.  That is at actually 335.  Yes, at the bottom of 335:

I show you a statutory declaration signed by apparently by somebody called Mae Glory Wailes.  Would you have a look at those two pages?

And that’s Glory Mae Wailes’ signature on the foot of each page?

That is 336.

HAYNE J:   Mr Game, I do not want there to be some misunderstanding about this, I want your submission about the proposition that your contentions have an air of theoretical unreality about them, given the way in which the judge instructed the jury at pages 394 and 398 and following, where the judge told the jury explicitly:

it is not the question that is the evidence.  It is the answer.

And, his Honour in his instructions to the jury on at least one reading of it appears to have instructed the jury that the only thing that might arguably be contrary to the accused’s assertion of good character was her acknowledgment that she may have witnessed documents without seeing the signature affixed.

MR GAME:   Well, in our submission, this is a case, and I referred the Court to Stirland before but there are cases such as Glennan that contemplate circumstances – Glennan (1992) 173 CLR, where prejudice is of such a kind that directions are not going to overcome the prejudice which occurs.  Now, in the context of cross‑examination, this is implicitly acknowledged by, in our submission, the very notion that you require leave before you ask the questions.  It is the questions as much as – when I say as much as, it is the questions as much as the answers that have a prejudicial effect and I referred before to the 1898 Act which said, “shall not be asked and, if asked, shall not be required to answer”.

When you look at what actually occurred in this case the cross‑examiner using this material, with one exception with respect to the witnessing of documents, without getting any concessions in respect of forgery, managed to paint a picture of a particular relationship between the two.

McHUGH J:   No, he did not.  He put questions which your client rejected and, depending on the impression she made on the jury, she could have won the whole case on one answer that she made to a question, when she said the allegations were totally untrue and outrageous, and if that impressed that jury, that may well have been the end of the Crown case.  That was a great opportunity.  She made a very positive statement and that is the danger that the Crown runs when they put these questions to a witness.

MR GAME:   But, your Honour, the cross‑examiner says, for example, that Ms Wailes said, “Close your eyes, Mae.  You don’t want to see this.”  There are lots of things like this.  Now, that is an allegation that comes from a statutory declaration that has never been tested in any context.  The jury are to think that Mae Wailes actually says that.

McHUGH J:   No, they approach their task, usually with sympathy to the accused and certainly with a high degree of fairness, and there is a denial from the accused and then the judge tells them that there is no evidence at all apart from this one conditional answer which would affect her good character.  It really is an unreal assessment of a jury trial to think that this is prejudicial evidence amounting to a miscarriage of justice.  It really is, Mr Game.

MR GAME:   Well, I cannot think of anything more prejudicial than putting to a witness – it is more prejudicial than putting to her that she murdered her grandmother because it is prejudicial in the very context and relationship and type of conduct that the whole issue goes to and at the very same time ‑ ‑ ‑

McHUGH J:   Material is prejudicial when it diverts the jury from its proper task, when it excites sympathy, when it excites hatred, anger and so on, or anything at all which would divert the jury from its task, but this jury hears her denials.  What do they think, that, “Oh, well, the Crown put, therefore, it must be right”?  It does not say much for the jury system, if that is right.

HAYNE J:   Perhaps my experience at the Bar is unique, Mr Game.  I did not think I was the only barrister who had devised lots of questions in cross‑examination that were intended to have particular prejudice to the other side only to have them have precisely the opposite effect, but perhaps the experience is unique.

MR GAME:   Your Honour, this cross‑examination does nothing for the appellant.

McHUGH J:   Of course it does not do anything for her.  The question is, “Does it do anything against her?”

MR GAME:   But you said that it might.  But it does, your Honour.

McHUGH J:   You assert that.  Your predecessor did not ask for the discharge of the jury.  He is not here.

MR GAME:   No, but he knew that he had already lost that battle long before.

McHUGH J:   Well, he lost a battle in relation to a general line of questioning.  Nothing to stop him getting to his feet and saying, “This has gone too far.  See what you have done, your Honour.  You have allowed these questions to go on.  Now look at the effect of that.  I want this jury discharged.”

MR GAME:   Actually, at one point he did say in one particular respect that it had gone too far:

My friend is trying to either set himself up, my client, as some sort of handwriting expert.

That is at the bottom of page 342 and that is what this cross‑examination smacks of.  There is nothing to be said for this cross‑examination.  This cross‑examination is poking under the nose of a witness something you know you cannot get into evidence and then just besmirching the witness with the material as best you can.  That is what this cross‑examination is.

McHUGH J:   Most people who have had experience of trials know there are very considerable dangers in aggressive cross‑examinations, that cross‑examiners, no matter how able they are, have to go about their task in a way that does not get juries offside and one would imagine in this particular case that this cross‑examination was so directed.  Merely because questions are put does not mean that the jury is diverted from its task, prejudice takes over.  The jury might be sitting there thinking, putting these allegations to her, she is denying them, there is no evidence to the contrary.  That is what I would be thinking if I was a juror.

HAYNE J:   Very unfortunate conclusions about Ms Wailes too.

MR GAME:   They might.  The question, in our submission, analysing it in terms of the Criminal Appeal Act, an error of discretion occurred in respect of the ruling entitling the cross‑examination, the question becomes a proviso question and then the Crown has to satisfy the Court there is no substantial risk of a miscarriage of justice.

KIRBY J:   I extended your agony by asking you one extra question.

MR GAME:   I am not in complete agony, your Honour.

KIRBY J:   It has gone on for much longer than I contemplated.

HAYNE J:   I proved my point, Mr Game.  You proved my point.

MR GAME:   I have not made any admissions.  Sorry, your Honour.

KIRBY J:   Thank you for answering my question.

GAUDRON J:   Did you wish to further answer Justice Hayne?

MR GAME:   Sorry, I think there might be some further questions.  I will try sitting down again.

GAUDRON J:   Thank you, Mr Game.  Yes, Mr Buddin.

MR BUDDIN:   May it please the Court.  Your Honours, I was actually going to start with one of the propositions that Justice Hayne recently raised, namely the directions of the trial judge to the jury, but that seems to have been well and truly canvassed so might I start in a different fashion.

In this Court last year in a case called Melbourne v The Queen (1999) 198 CLR 1 Justice Gummow had this to say at page 28. It is only a short passage. Perhaps I can just read it to your Honours:

The issues in the particular case and the nature of the evidence of “good character” which is proffered will guide the process of reasoning of the tribunal of fact on the path to providing an answer to the ultimate question of whether the accused is guilty beyond reasonable doubt.

We adopt what his Honour has to say there.  The appellant in her submissions to the jury as recorded by the trial judge had this to say.  Might I take your Honours to part of the trial transcript at pages 412 to 413.  Your Honours will find that in volume 2.  Can I take it that your Honours actually have the relevant parts – 412 of the appeal book?  This is what appears at the bottom of page 412 over to 413:

“He”, that is obviously a reference to trial counsel, “points to the evidence of her good character” – this appears between lines 55 and 60 –

and standing in the profession and the community, evidenced by people holding important positions in the law and business, which attests to her honesty.  Those are significant factors to take into account.

Then this appears:

Added to that this car was insured for $22,000.  If she had sold it or traded it in she would have got less than that, but not a great deal less.  So the Crown case is based upon this woman putting her entire career and reputation at stake for what might be no more than $5,000 or so.  In the light of her character and reputation it is inconceivable she would stoop to such a dishonest device.

Given the issues of the trial, the strength of the Crown case, and the formidable nature of the character evidence, it was thoroughly understandable that the appellant would, in the circumstances, wish to rely upon her good character in order to persuade the jury that it ought to entertain a reasonable doubt about her guilt.  So it was hardly surprising that she made the tactical decision to run good character, notwithstanding the adverse preliminary ruling.  My learned friend has referred to it as an advance ruling.  Perhaps there might not be an enormous distinction between the two but we prefer the terminology of preliminary ruling.

This is a case of a type that your Honour Justice Hayne no doubt had in mind in ‑ again, may I take your Honours to Melbourne v The Queen at page 55 at line 151? Your Honour there said:

Nevertheless, the fact that an accused is a person of good character may loom large at trial.  It may be a very persuasive argument in the hands of the accused’s advocate and may be very influential in the jury’s deliberations.  In some cases, it may lead the jury to conclude that they are not satisfied of the guilt of the accused.  In at least some cases that may owe more to an appeal to emotion or prejudice than to any identifiable and logical process of reasoning.

KIRBY J:   Which page was that again?

MR BUDDIN:   Page 55.  We say what your Honour had to say there is particularly apt in the circumstances of this case.  The Crown case asserted that the appellant had committed an offence of dishonesty.  It relied principally upon the oral testimony of two witnesses, Ms Wailes and another employee.

GAUDRON J:   Yes, but the other employee’s evidence really did not connect the accused with the offence.  She did not speak to her at any stage about it.

MR BUDDIN:   No, that is true but ‑ ‑ ‑

GAUDRON J:   I was surprised that her evidence was admissible, that it was led ‑ ‑ ‑

MR BUDDIN:   Without objection, I think.  I might be wrong about that but, nonetheless, I am prepared to concede that the real thrust of the Crown case depended upon the evidence of Ms Wailes.

GAUDRON J:   Well, it depended entirely on Ms Wailes at the end of the day, did it not, and the facts?

MR BUDDIN:   Well, I am just about to come to the facts and that was highly significant.  There was a document which, on its face, was incriminating, and there was evidence from Ms Wailes that it was in the handwriting of the appellant.

CALLINAN J:   It is only incriminating if it is in the handwriting of her, otherwise, on its face, it does not say anything.  It begs the question.  You first ‑ ‑ ‑

MR BUDDIN:   Well, with respect, the evidence goes a bit further than that.  Ms Wailes was never challenged about that.  An opportunity was given to counsel to have her recalled specifically so that that could be put to her and it was declined.  Without going to the transcript reference, can I simply indicate to your Honours that it appears at appeal book 189.

So this very issue of whether or not there would be a challenge to her recognition of the handwriting was ventilated and re-ventilated and the opportunity was extended.  Perhaps I had better take your Honours to it; it might have some significance.  Perhaps one needs to go back to 188 at about line 35 and that sets the context, what his Honour has to say there.  Then if I might summarise page 189, the effect of it is that his Honour on two occasions asks counsel whether or not counsel wishes Ms Wailes to be recalled for the purpose of putting the contrary proposition to her.  As his Honour says at line 30:

Mr Skinner, I will say it for the last time, do you want Ms Wailes recalled for further cross‑examination?

SKINNER:   No, your Honour.  I have certain instructions and I am acting upon those instructions.

CALLINAN J:   Did Ms Wailes give evidence-in-chief about the handwriting?

MR BUDDIN:   Yes.

CALLINAN J:   What page is that?

GAUDRON J:   Page 28.

MR BUDDIN:   Pages 28 and 29, I think it is.  Yes, down the bottom of 28 and over on to 29.

CALLINAN J:   Thank you.

MR BUDDIN:   Have your Honours seen the contents of the fax?  I am not talking about the fax itself.  Would that be of some assistance if I took your Honours to that?  Perhaps it is.  It is referred to in its entirety in the electronically recorded interview.  It is supplementary appeal book page 109.  Perhaps just for context, if I could take your Honours back to page 108 at about line 35.  “M” is the police officer and “S” is the appellant.  At line 10 on supplementary appeal book 109, she reads out the contents of the fax itself.

Other evidence indicated that Mira – that is the second of the employees – had attended the police station that day, and that was a fact known to the appellant.  In fact, the woman, Mira, gave evidence of having spoken with the appellant on that day.  So the propinquity and timing is of some significance.  In her evidence-in-chief she was taken to this matter and that appears at appeal book 238 to 240.  That is, of course, against the background of what she said when confronted with this matter by the police.  I would invite your Honours to read pages 238 to 240.

CALLINAN J:   Did the record of interview go into evidence?

MR BUDDIN:   Yes it did.

CALLINAN J:   Was there any objection to the passage that you took us to at page 108 in the supplementary book?

MR BUDDIN:   You mean the contents of the electronically recorded interview?

CALLINAN J:   Yes.

MR BUDDIN:   No.

CALLINAN J:   What stage was the record of interview introduced into evidence?  You may want to get your junior to tell me that; I just need a page reference, that is all.

MR BUDDIN:   Could your Honour just pardon me for a moment?

CALLINAN J:   Yes.

GAUDRON J:   According to her evidence, at this stage Detective Lockton had already suggested to her that she had arranged for the car to be stolen as part of an insurance scam.

MR BUDDIN:   Yes.  But that appeared in the introductory questions in the record of interview.

GAUDRON J:   Yes, but it is of some importance in relation to it, is it not?

MR BUDDIN:   In relation to the?

GAUDRON J:   Facts.  Detective Lockton had already put to her, or suggested to her, that she had arranged this for the insurance.  This is before she was interviewed.

MR BUDDIN:   Yes.

GAUDRON J:   And this is before Mira was interviewed, and this is before the facts to Mira – before the facts to Mae, I am sorry.

MR BUDDIN:   Yes.

GAUDRON J:   So at that time she knows that at least one of the investigating police ‑ ‑ ‑

MR BUDDIN:   Is aware of the allegation.

GAUDRON J:   Is aware of the allegation, of her involvement.

MR BUDDIN:   And has communicated it to her.

GAUDRON J:   Yes.

MR BUDDIN:   Correct.  In those circumstances, what the appellant did in terms of a conduct of her case, the only things she had to rely upon were her sworn denials, perhaps what was contained in the electronically recorded interview, and as a matter of tactic she hoped that the character evidence would make the difference, bearing in mind the onus of proof, of course.  I have already indicated to your Honours – I am informed, your Honour Justice Callinan, that the record of interview was admitted at appeal book, page 168.

To use the terminology that is utilised in the Australian Law Reform Commission report, the good character evidence across the spectrum, first of all the appellant raised character herself in her own case, and might I take your Honours to appeal book 246 where she does this.  This is in her case in‑chief.  My learned friend made a reference to this transcript or this part of the transcript - did not actually take your Honours to it.  At about line 19 or perhaps it starts at about line 8:

Q. You heard me ask questions to the police officers whether you had any prior convictions.

Then at about line 19:

Q. As far as you know, this is the first time you’ve been accused of something of this nature?
A. Yes, it’s a dreadful crime I’m being accused of.

Then:

Q. There is a Law Society complaint floating around at the moment about you; is there not?
A. Yes, the DPP wrote to the Law Society.

Q. In connection with this matter?
A. Yes.

Q. And what was the result of that; do you know?
A. I had a full investigation of the practice as a result of that.

Q. And you now know that Mae Wailes made some further allegations about you, don’t you?
A. Yes, she had made a number of statutory declarations to the Law Society.

Q. And what are the effect of those?
A. They were just blatant lies.

Q. What was the sum matter of them?
A. Mae Wailes made allegations that I had forged clients’ signatures in family law documents which is total untrue and outrageous.

Then:

Q. Is there anything else about yourself that you feel in a manner that would prevent you saying you’re a person of good and blameless character?
A. No, nothing at all.

Now, that is important, that entire passage is important for two reasons.  I will come back to the second in a moment, but I am just concentrating on the evidence of “positive good character”, as his Honour referred to it as, that is, the second part is her revealing in her own evidence for the first time before the jury that Mae Wailes had made allegations and what the substance of them was because we say that assumes particular significance in this case.

GAUDRON J:   But at this stage, it is also known that the trial judge is going to allow the cross‑examination of her on the report that you have and shown to the trial judge which contains the statutory declaration and it is also known – has it been ruled that you cannot lead evidence in reply at this stage?  No.  That comes later, does it not?

MR BUDDIN:   Yes, that comes later in the chronological sense.  Can I come back and deal with that because it is of some significance, but it is in another context.  I simply wanted to alert to the Court to nature of the positive good character of this sense and if I do that seriatim, I think it will make a bit more sense.

She then gave evidence as a result of leave being granted ‑ and my learned friend took your Honours to this.  That is at page 274.  That was during the debate about the grant of leave and the effect of that evidence is in the supplementary appeal book.  There is re‑examination first.  That appears at page 21 – and your Honours I am talking about the supplementary appeal book at this stage – lines 34 and 35:

Q.  Is it something that you value your career as a solicitor?
A.  Yes I like being a solicitor and I like the work that I do and I like helping people.

On page 22 she gives evidence about the family law proceedings and at about line 22:

Q.  You were asked questions about the Law Society investigating into the matter?
A.  Yes.

Q.  To your knowledge, is the Law Society proceeding in any respect with that matter?
A.  No.

OBJECTION.  QUESTION ALLOWED.

Q.  To your knowledge are the police proceeding?
A.  No.

Q.  The Law Society, did it look at any other matters in relation to your practice?

And then two lengthy answers which appear between lines 38 and 50, that she has, in effect, got a clean bill of health.  Then – this is the further evidence in‑chief by leave to which I referred your Honours by reference to appeal book 274 ‑ and this is evidence led from her about the voluntary work that she does:

a lot of voluntary community work.  I was on the panel for Marrickville legal centre.....pro bono work –

things of that nature.  She worked there two nights a week.  At line 40, her contributions on a charitable basis for the Macedonian community and ‑ ‑ ‑

GAUDRON J:   I am sorry, where are you reading from?

MR BUDDIN:   I am sorry, your Honour.  This is still in the supplementary appeal book but at page 24.

GAUDRON J:   Yes, thank you.

MR BUDDIN:   And about the middle of the page your Honour will see further evidence in‑chief by leave.  Does your Honour have that?

GAUDRON J:   Yes, thank you.

MR BUDDIN:   So it goes to two or three different aspects:  first of all, the work of a voluntary nature, some of it being voluntary nature in relation to a legal centre; then work in the Macedonian community; and then she did “A lot of the banking”, going over to page 25, and then working for an aged people’s hostel.  So that is what emerged from her own evidence.  Then, as befitting her position, she was able to call in aid a number of witnesses, who themselves occupied positions of eminence and influence in the community and whose own probity was not in question.

Some of them sat on professional bodies dealing with ethical considerations of their members and each of them, because this went to the strength of the evidence, have known her for a long time and thus could provide some sort of insight into the appellant’s character.  The totality of that evidence was to point uniformly in the direction of her being a person of honesty and integrity.

McHUGH J:   But it does make you wonder how she got convicted.  It makes you wonder whether or not that maybe there was some diversion of the jury’s attention to issues in the case.  I mean, this was a pretty weak old Crown case, was it not?  You are relying on two witnesses, one of whom had no conversation with the accused about the matter; one who pleaded guilty.  Even the accounts as to what was said seems a bit incredible.  You have overwhelming evidence of good character and then a conviction.

MR BUDDIN:   Well, with respect, something that was at the centrepiece of this – I mean, juries are instructed and this jury was instructed that they should look for independent evidence to support that of Ms Wailes and it came in the form of the fax and her response to the fax was first of all, “It doesn’t look like my handwriting because it’s different” and secondly, the effect of it was that she could not remember whether or not she had written that fax.  Her response to that part of the Crown case ‑ ‑ ‑

McHUGH J:   But was not all this at a stage when she had had a miscarriage and she had had a curette.  She was claiming she was stressed about the car.  I mean, her recollection, in those circumstances, might well be poor.  It is a pretty thin old Crown case, it seems to me, Mr Crown.

MR BUDDIN:   Well, with respect, we are at odds about that, particularly because of what the fax purports to be saying, nothing incriminating and tear up the fax.  She was cross‑examined at some length about this and it certainly did not get any better.  His Honour at one stage was minded to ask her a question as to what, if she conceded or proceeding upon the assumption that it was in her handwriting, what did she intend to convey.  Perhaps I can pick that up but the answer was less than instructive so, in our submission – I am told 304 about line 52 ‑ ‑ ‑

GAUDRON J:   Yes, but she already believes, she already knows that the police suspect her.  She has known this for two days.  She can get no sense out of Mae Wailes, according to her evidence, but she suspects she is involved.  According to her evidence, she does not known what Mira’s involvement is, if any.  She does not know why she has been taken away and spoken to.

MR BUDDIN:   She knows that it is about this matter.

GAUDRON J:   Yes, she knows that it is about this matter but she knows nothing else but she is already on notice that the police suspect her, have her in their sights and she is also on notice that they have Mae in their sights.

McHUGH J:   Exhibit F is not part of the record, is it?

MR BUDDIN:   Before this Court?

McHUGH J:   Exhibit F is the fax, is it not?

MR BUDDIN:   It is.

McHUGH J:   Is it in the record anywhere?

MR BUDDIN:   No, it is not reproduced.  Your Honour would like to see it?  Is that the import of what I am being asked?

McHUGH J:   Yes, I would.

MR BUDDIN:   There are two documents.  I am told that the top document is in fact a copy of the original paper which has, with the passage of time, faded.  But it is of some significance that the handwriting on the document is a little inscrutable, so the appellant’s capacity to read it onto the record for the purposes of the recorded interview assumes some significance.

CALLINAN J:   What are you saying, because she can read it she must have written it?

MR BUDDIN:   No, not that she must have written it, but it certainly supported that proposition.  I mean, it is not easy to read, if one looks at it.

GAUDRON J:   And this emerges at a time when Ms Wailes has said to the police, “What if I could get you some evidence?”.  The police have been saying to Ms Wailes, “Well, it’s only your word”, and she says, “What if I could get you some evidence?”.  She said this much earlier than this.  That is right though, is it not?

MR BUDDIN:   In summary fashion, yes.  One of the other things that appears in the fax is a reference to having the next day off as a sick day and, given that she was the employer, that tends to suggest who it was who had sourced the document.

Could I next take your Honours to the evidence of a barrister, Mr Galitsky.

KIRBY J:   All of this is set out, is it not, in the written submissions?

MR BUDDIN:   Yes.

KIRBY J:   Why are we being taken to it again?

MR BUDDIN:   Only to indicate what the nature and extent of the evidence was.  But there is just one particular aspect of what Mr Galitsky had to say that I wish to take your Honours to.  This appears in the supplementary appeal book at page 29.  It starts at about line 33 and goes over to page 30, at about line 16.  He expresses the opinion that she is honourable, trustworthy and reliable.  Then he is asked to provide particular examples that lead him to that opinion.  It is that long answer there that is of some significance, about her scrupulous attention to detail when she takes instructions from clients.  Then the last sentence:

But in my observation she never gingered up their evidence or did anything that would be underhand or dishonest.

Then in the next answer:

I would accept anything that she said to me and I could rely on things that she said to me.

Then he goes on to refer to her generosity.

KIRBY J:   I do not quite see where you are getting at here.  There is no doubt that the accused endeavoured to establish by evidence affirmative opinions as to her good character.

MR BUDDIN:   It simply goes to show the extent of it and the question of whether, when it came to the question of leave, how was the exercise of that judgment to be weighed in the balance given the nature of the evidence that had been adduced by her, relative to the evidence that was adduced in rebuttal.  That is the purpose of it.

KIRBY J:   But as I understand the appellant’s case, she says, “Well, I can have no objection to your testing the propositions, but I do have objection being told that I cannot call evidence to rebut the detail of it to your opening up questions which essentially are addressed to a suspicion, an accusation which has never been established and which I am in a position where I cannot really disprove it”.  It is therefore not your right to test evidence of character that is in evidence, it is a question of whether what was done is impermissible because it is addressed to rumour and suspicion.

MR BUDDIN:   With respect, it goes beyond that.  That is, the probative value, the weight of the evidence that was adduced.  His Honour had the document in front of him, that is the report, and there seems to be a duplication between some of the documents that appear in the report and what appears on the family law file.  We are not talking about different documents.

His Honour had the opportunity to read the contents of that file and no doubt his attention was excited by the fact that there were different, or apparently different, ways in which the signature of the client appeared on the documents.  Now, in a sense, in a real sense, the appellant was on the horns of a dilemma.  She knew the allegation of forgery was going to be put to her and she took what might be regarded as the lesser of two evils by seeking to explain how her signature witnessing the purported signature of the client appeared there without it amounting to forgery and that is why the concessions emerged in the cross‑examination.

HAYNE J:   Is not the difficulty in your case, Mr Buddin, that in essence the cross‑examination proceeded in the nature of a wife beating cross‑examination, that is, the whole thrust of the cross‑examination was directed to demonstrating the fact of forgery, is that right?

MR BUDDIN:   At its highest that was no doubt what was hoped for, yes, I accept that.

HAYNE J:   Whereas the only material that was available to the prosecutor was material demonstrating that an accusation of forgery had been made and supported in particular ways, is that right?

MR BUDDIN:   Yes.

HAYNE J:   The Act, relevantly, seems to distinguish between a number of concepts.  Some of the rules deal with evidence that may be adduced.  Some of the rules, and the relevant rules, regulate cross‑examination about matters.  “Thou shalt not cross‑examine an accused about a matter”.  That seems to be a prohibition about questions, does it not, rather than about being a prohibition about directing questions to elicit certain evidence.  It says, “Thou shalt not cross‑examine, for example, about any matter relevant only because it is relevant to the defendant’s credibility unless certain conditions are met”.

MR BUDDIN:   We submit in this case that this was a section 112 cross‑examination because it did not only go to ‑ ‑ ‑

HAYNE J:   Let us take it for the moment that that is right, though that is a premise that may be open to debate, therefore, “Thou shalt not cross‑examine about matters arising out of evidence of a kind” but is the Evidence Act to be construed as permitting the conducting of an ancillary inquiry into the fact of forgery or is it to be construed, relevantly here under 112 and cognate provisions, as regulating the subject matter of questions so that the Crown may not ask questions about the allegation of forgery unless leave is given and, if that is so, does that not seem to give force to the proposition put against you centrally which is if there is an undoubted fact, for example, the accused has a prior conviction or has admitted an undeniable fact then that is the matter, that here there is an allegation.

Now, either the cross‑examination is becoming a wife beating cross‑examination, admit that you have committed forgery, or it is heading off down a separate path which the Evidence Act is not to be construed as permitting because it is setting up an ancillary area for inquiry.  Do you see the kind of difficulty that I have?

MR BUDDIN:   Yes.  Your Honour, in a sense the way in which the evidence in‑chief was adduced by the appellant invited the type of cross‑examination that ensued.  Can I take your Honour back to appeal book 246, where this was ‑ ‑ ‑

CALLINAN J:   Mr Buddin, in answering his Honour’s question, would you also please keep in mind these matters, because it seems to me that this inquiry started – and I wonder what the basis for it is – long before the trial because am I right in thinking that the record of interview, the interview commences relevantly at page 68 of the supplementary book?

MR BUDDIN:   Could I just check that?

CALLINAN J:   I do not want to distract you from Justice Hayne’s question.

MR BUDDIN:   Yes, certainly.  Yes, that is correct.

CALLINAN J:   The police officer says that he is investigating, he is inquiring at line 26:

making inquiries in relation to an offence of conspiracy to cheat and defraud.

Then if you go over to page 109, he seems to be making an inquiry as to the forgery allegation.  Now, is that right?  I mean, what is the police officer doing at this early stage in this territory, in any event.

MR BUDDIN:   I am sorry, whereabouts on page 109, your Honour?

CALLINAN J:   Is that not what you drew our attention to and the police officer ‑ ‑ ‑

MR BUDDIN:   I am sorry, I think we are at cross purposes, your Honour.  I think what is being referred – well, I am pretty certain that what is being referred to at pages 108 and 109 is the facsimile. 

CALLINAN J:   Yes.  Does that bear upon this case?

MR BUDDIN:   Yes, the facsimile was the evidence that I was submitting was supportive of the evidence of Mae Wailes, and the contents of that fax appear at lines 10 to 16.

CALLINAN J:   Of page?

MR BUDDIN:   Of page 109.  So I know we are talking about handwriting in both respects, but the forgery related to the family law documents.

CALLINAN J:   Right, and this questioning at page 109, it has nothing to do with the forgery?

MR BUDDIN:   No.

CALLINAN J:   I am sorry, that is my misunderstanding.  Now, I hope I have not diverted ‑ ‑ ‑

MR BUDDIN:   Does that clear up your Honour ‑ ‑ ‑

CALLINAN J:   Yes, it does, and I hope that I have not diverted you from answering his Honour’s question.

HAYNE J:   I cannot recap, Mr Buddin.  You will have to do the best ‑ ‑ ‑

MR BUDDIN:   No.  But I think the point I was making was that, in a sense, it is central to the point that I promised your Honour Justice Gaudron that I would come back to.  Perhaps I had better go to that.

GAUDRON J:   Yes, you were saying it came out of her evidence in‑chief and ‑ ‑ ‑

MR BUDDIN:   Yes, perhaps I better go to that because it is really central to my learned friend’s submission and it is this.  Can I take your Honours to what my learned friend says in his written submissions in reply.  At paragraph 3 the appellant submits that the advance ruling assumed greater significant than the final ruling because by then the grant of leave was inevitable, given that the appellant had raised in her case the Mae Wailes allegations.  Now, the reason that is proffered is that she did so upon the basis that she anticipated being cross‑examined upon the matter.  Upon that basis, that is the basis upon which he seeks to impugn the advance ruling.

GAUDRON J:   But had not the prosecutor said he would be cross‑examining her but he would not be putting to her the handwriting report.  “All I won’t be doing is the handwriting report”, he said.

MR BUDDIN:   With respect, there is a bit more to it than that.  What the appellant says there, he concedes that the grant of leave was thus inevitable by reason of the tactical decision to adduce that evidence-in‑chief and normally, one would be bound by that tactical decision.  So what the appellant must circumvent, in our submission – must circumvent the consequence that normally flows from taking a tactical decision, must demonstrate that the tactical decision was not one which he described as being forced on her in the sense that she acted to her detriment by taking a course, that is adducing evidence about the Mae Wailes’ allegations that she would not otherwise have taken.  It is submitted that the appellant cannot demonstrate that the evidence was not adduced for tactical reasons.

KIRBY J:   Well, if she did not adduce evidence of good character ‑ ‑ ‑

MR BUDDIN:   Sorry.  Assuming the preliminary ruling was in place but the submission, in effect, is that this was not something that was forced upon her.  Once it was in the arena, that is that the Crown would have a grant of leave, so against that background there were sound tactical reasons for adducing the evidence in her own case and in so doing she sought to deflect attention away from other aspects of the Crown case enabling her to suggest that this was, in effect, just another complaint from Ms Wailes which was never proceeded with by the police or anyone, especially as the client had never complained so putting the focus back on Ms Wailes.  So, in other words, a pre‑emptive strike.

Furthermore, by raising the fact of the Mae Wailes’ allegations, that they had gone to the Law Society, a factor which even the appellant does not suggest that she would have anticipated having been raised against her, so it is not just the allegations but the fact that the complaint has been made to the Law Society, she was then able to say that they investigated her and found no irregularities.  Then, in the course of cross‑examination of the appellant, this occurred.

Might I take your Honours to page 341 of the appeal book?  The context of the previous couple of pages is the appellant had been questioned about the apparently different signatures on different documents and elicited the answer that appears at line 15:

Q.  Well, one of them purports to have been put there in your presence, doesn’t it?

That is one of the signatures:

A.  It’s possible that I may have just had a document just brought in and witnessed it.  Sometimes that happened.

…..Sometimes if you’re in a hurry…..

Q.  You wouldn’t do that with an affidavit, would you?
A.  I don’t know, but it’s possible.

Q.  Would you do that with an affidavit?
A.  No.

Then, having said that “They don’t look like the signature of my client.”, counsel objects and says:

My friend still has not put the allegation, he still has not put it.

CROWN PROSECUTOR:  I just put the allegation.

SKINNER:  He has not put what Mae Wailes is saying.

So he is anxious to remind the jury that the source of these allegations is Ms Wailes.  If there was a tactical element in the way he went about conducting the evidence-in‑chief, then a significant part of his argument disappears, with respect, because he is bound by the tactical considerations that were taken into account at the time.

GAUDRON J:   This is relevant of course to the proviso, is it?

MR BUDDIN:   Certainly.

GAUDRON J:   It does not go beyond the proviso?

MR BUDDIN:   No, it is not submitted that it is confined only to the proviso.  It goes to the question of whether discretion miscarried in the first place.

GAUDRON J:   Which discretion are we talking about:  the one back over at page ‑ ‑ ‑

MR BUDDIN:   Does your Honour mean the first ‑ ‑ ‑

GAUDRON J:   The first ruling?

MR BUDDIN:   No, I am talking about the second.

GAUDRON J:   You are talking about the second ruling?

MR BUDDIN:   Yes.

GAUDRON J:   But it cannot be taken in isolation from the first, can it?  For the purposes of your argument, you have to urge that it be taken in isolation from the first and in isolation from what the prosecutor was at all stages saying:  “If she gives character evidence, I want to cross‑examine her on this report and the only thing I won’t be putting to her is the statement of the handwriting expert”.  As it turns out, he was not putting that to her because he intended to call him.

MR BUDDIN:   Hoped to.

GAUDRON J:   Hoped to, yes.

MR BUDDIN:   But the submission still is that, faced with the likelihood of the grant of leave, this was the option that was taken.  There was no need ‑ ‑ ‑

GAUDRON J:   There was no need to give character evidence.

MR BUDDIN:   Not only that, but there was no need to raise the Mae Wailes allegations unless he was seeking to obtain a tactical advantage.  I am not criticising that.

GAUDRON J:   Well, seeking a tactical advantage in this sense:  better to have it out in the open than wait for it to come out in cross‑examination, because it would then look as though his client had been attempting to conceal something.

MR BUDDIN:   But the submission is that when the original indication was given, trial counsel then focused on the question of damage control, understandably.  The tactical decision that was taken was to deflect attention back on to Ms Wailes because, unless my learned friend can exclude the tactical consideration, then he is bound by the course that he took.

GAUDRON J:   Look, I think everybody is bound, are they not, by the way this trial was conducted?  That includes the prosecution.

MR BUDDIN:   Undoubtedly.

GAUDRON J:   What you got was a ruling way back at the beginning that you could cross-examine, in effect ‑ ‑ ‑

MR BUDDIN:   Provisionally.

GAUDRON J:   - - - without the trial judge apparently at that stage having considered the 198 or 158 matters.

MR BUDDIN:   Can I deal with that aspect.  My learned friend, understandably, has sought to elevate the significance of what he calls “the advance ruling”.  We emphasise that in fact it was a preliminary ruling, subject to change, with an important contingency and that was ‑ ‑ ‑

GAUDRON J:   Now, at all stages, though, before what here occurs at, is it 336, your talking about subpoenas, issuing new subpoenas.  You have got leave to serve short notice of a subpoena on the handwriting expert, have you not? There is no doubt about the way this case is being conducted, from the prosecution’s point of view, well before this happens.  That is right, is not, Mr Buddin?

MR BUDDIN:   That might be so, but ‑ ‑ ‑

GAUDRON J:   It is a way in which those for whom you were responsible conducted the trial.  It does not seem to me to make a lot of sense to say one side is bound but to do that in a vacuum which does not take account of the way you were conducting the trial which seems to me you have got to say both sides were bound by the way the trial was ‑ ‑ ‑

MR BUDDIN:   Yes, I do not resile ‑ ‑ ‑

GAUDRON J:   And, that includes you and you had, as it were, gained yourself a tactical advantage very early in the piece.  One way or the other, you had hoped to put the defence in a position and it is clear to me, at least, from the way in which the prosecution kept coming back to the matter, your aim was to frighten the defence off calling character evidence, the aim of the prosecutor.  It seems to me to have been the clearest tactical decision on the prosecutor’s part that you could conceive and it seems to be a tactic which the prosecution set up.  The whole operation seems to me to be one that the prosecution set up.

MR BUDDIN:   Well, I suppose these are always questions of characterisation but I am not sure on what basis your Honour comes to that conclusion.  This was an advance ruling sought by the appellant.

GAUDRON J:   Yes.

MR BUDDIN:   I mean, I am not seeking to attribute blame here I am just trying to ‑ ‑ ‑

GAUDRON J:   But, clearly, everybody knew at the time that ruling was sought, and one would infer that the prosecution had told them that they had – if they did not already know one would infer that the prosecution had told them about the Law Society report.

MR BUDDIN:   Yes, I accept that.

GAUDRON J:  It seems to be clear from page 11 of the appeal books.

MR BUDDIN:   Be that so, why does that necessarily carry the inference that it was an endeavour to intimidate, as distinct from good practice, that is part of the disclosure requirement of putting them on notice as to what would be called in rebuttal if leave was given?  Why must it be inferred that there is bad faith?

GAUDRON J:   The passages throughout suggest that having got that ruling which you had got, and indeed the trial judge tried to persuade them not to call character evidence as well, but you had got a ruling, it seems to me, in your favour, without the proper matters being addressed and you are asserting entitlements at all stages, “You know what will happen if you do that”.  It comes immediately after the cross‑examination of Detective Sergeant McGillicuddy - I forget where it is but I can find it, if need be – when the discussion then starts and the trial judge is saying, “Well, I am not taking character as having been raised specifically at that point.

MR BUDDIN:   Yes.

GAUDRON J:   Yes.

MR BUDDIN:   This was a ruling sought by the appellant.  He said, “This was your ruling, in your favour”.

GAUDRON J:   It was a ruling in your favour.  However it came about, you acquiesced in the procedure, it was a ruling in your favour, and you certainly did not seek to – there is nothing to suggest that you were not going to avail yourselves of the benefit of it.  At the very least, that must be said.  There is nothing anywhere to suggest that the prosecution would not avail itself of the benefit of the ruling.

MR BUDDIN:   Can I ask rhetorically why not, your Honour?  What was the obligation to not take advantage ‑ ‑ ‑

GAUDRON J:   There is no obligation but this is all in the context of your submission that the accused “done, brung” it on herself.  That is your submission.  I am saying it is not as simple as that.

HAYNE J:   Mr Buddin, do you stand or fall on 112 or do you seek also to rely on Part 3.7?

MR BUDDIN:   We rely primarily – I suppose the answer is both, but, primarily, on 112.

HAYNE J:   Can I then take you through a series of concerns about the operation of 112?  They are these ‑ ‑ ‑

MR BUDDIN:   Can I say I share concerns about 112?

HAYNE J:   At the point that the prosecutor began to cross-examine the accused on these matters, there was no evidence which had been adduced which would show that the defendant was not generally of good character or was not of good character in a particular respect.  Is that right?  That is to say, section 110(2) and (3) had not been engaged when the prosecutor began to question the accused about the alleged forgery.

MR BUDDIN:   No, I do not accept that.

HAYNE J:   What was the evidence that had been adduced to demonstrate that the defendant was not generally, or in a particular respect – let me leave aside which – of good character?

MR BUDDIN:   I am sorry, I might have misunderstood you.  Section 110(1) had been enlivened.

HAYNE J:   But 110(2) and (3) had not.  Is that right?

MR BUDDIN:   That is correct.

HAYNE J:   No evidence having been adduced tending to prove that she was not of good character, a possible point of view is that section 112 did not permit her to be cross-examined about matters arising out of her evidence of good character if to do so would be unfair – see section 192.  Is that right?

MR BUDDIN:   Yes.

HAYNE J:   And it would be unfair to the accused to do so where all that had been made was accusation unsupported other than by the stat dec of Ms Wailes, and that the judge, in making his rule, did not advert to those questions of fairness or unfairness and the discretion, therefore, miscarried.

MR BUDDIN:   Is your Honour talking about the original ruling or the final ruling?

HAYNE J:   The final ruling, presumably, is the one you would say operates.

MR BUDDIN:   Yes, I do, but that did not seem to have been necessarily clear from other questions.

HAYNE J:   Section 112 having operation in relation to cross‑examination about matters “arising out of” evidence of good character or “arising out of” evidence of bad character, but the latter was not then engaged, there then having been no evidence of bad character.

MR BUDDIN:   I am just seeing if his Honour actually adverted to this in the final ruling.

GAUDRON J:   If you look at the bottom of page 276, you will see that the trial judge construed what was going on in much the same terms as I put to you:

This forecast was made, it seems to me, as a warning to the defence that to proceed with any cross‑examination…..could result in this material being sought to be introduced into the trial.

MR BUDDIN:   But a warning is not necessarily the same thing as a threat.

GAUDRON J:   No.  Yes, but anyway, it does not matter.  But this is the area in which you have to find what the trial judge did in his final ruling.

MR BUDDIN:   Yes, I was ‑ ‑ ‑

HAYNE J:   And the consequence of the ruling was that the accused was in no‑man’s‑land in the middle.  The no‑man’s‑land being ‑ ‑ ‑

MR BUDDIN:   The unproven allegations.

HAYNE J:   ‑ ‑ ‑ where we have allegations but no trial of the fact, and there lies the unfairness.  That is a difficulty, one of many difficulties I have at the moment.

MR BUDDIN:   I accept that, your Honour.  Can I say in relation to that two things.  One, Stirland, upon which my learned friend relies, and not surprisingly, was a case of classic mere suspicion.  There was some evidence supportive here of the allegation, not just the documents themselves.  But, I mean, another factor was that in the memorandum of fees rendered by the appellant to her client there appears no reference to the conference, presumably at which the opportunity would have arisen.  So there was some basis, and it is significantly different from Stirland.

I might say incidentally about Stirland, that in that case, even though the Court said that the questions were impermissible, that they applied the proviso.  But I have lost my track by having gone down that road.  There was one other thing that I ‑ ‑ ‑

HAYNE J:   The question of unfairness.  Does the judge advert to unfairness permitting the question?

GAUDRON J:   It is page 280, is it not, ultimately where it comes to?

MR BUDDIN:   In this sense, your Honour.  He does advert to unfairness, and I am using that under a general rubric, not necessarily as a term of art, because of what he ultimately does.  He says, “I don’t want this to get out of hand.  I will confine the trial on the collateral issue to the cross‑examination but I will not permit evidence to be called in reply”.  So in that sense his Honour very definitely considered relevant discretionary matters, including unfairness.

GAUDRON J:   His Honour says there is prejudicial effect – on both sides, I think he says, does he not?

MR BUDDIN:   That is precisely what he says.  It is page 281.

GAUDRON J:  

I appreciate that the Crown…..there is prejudice to the Crown case as well ‑ ‑ ‑

MR BUDDIN:  

but it seems to me the balance –

is to be achieved in this way.

GAUDRON J:   But it does not seem to indicate what is the prejudice or unfairness involved with the cross‑examination.  The analysis seems to be about the unfairness involved in calling positive evidence.

MR BUDDIN:   I must say that I read 279 and 280 – and I appreciate that he is talking about two different matters but, if one was to read them in conjunction, it is my submission that he is talking about the totality of matters, not just the question of cross‑examination.  But I accept that that is open to different interpretations.

GAUDRON J:   And it is all in the context of an application by the prosecution to call positive evidence in reply.

MR BUDDIN:   This also went to the question of the grant of leave.

GAUDRON J:   What were the applications that were made?

MR BUDDIN:   In relation to what inspired this judgment?  Is that what your Honour is asking me?

GAUDRON J:   Yes.

MR BUDDIN:   It is in the pages just before.

HAYNE J:   Page 275 line 20, “leave under s.112”; line 30, “seeks to recall”.

MR BUDDIN:   Yes, so it is both.  That appears more apparently at pages 272 to 273.

HAYNE J:   But it is leave to cross-examine and leave to adduce evidence.

MR BUDDIN:   Indeed.

GAUDRON J:   Where is the leave to cross-examine?  I am sorry, I cannot find that.

HAYNE J:   Page 275 line 20.

GAUDRON J:   That is to cross-examine about the signatures though, is it not?

MR BUDDIN:   Leave to cross-examine.

GAUDRON J:   Yes, but was that not an application to cross-examine by asking her to write 30 signatures?

MR BUDDIN:   Your Honour, I must say that I am not quite sure of the chronology of it because there was a debate that started at about 272.  He certainly raised that spectre and it was rejected.

GAUDRON J:   You said that had earlier been rejected.  Very well.

MR BUDDIN:   So 273, your Honour, between lines 10 and 15.  So that is rejected and it then goes on to ‑ ‑ ‑

GAUDRON J:   Yes, thank you.

MR BUDDIN:   So it goes to both matters.

CALLINAN J:   Mr Buddin, could I just ask you a question about the response that you made to Justice Hayne.  Do you say that both Parts 3.7 and 3.8 are engaged in this case?  I think you said to Justice Hayne that you thought they were.

MR BUDDIN:   Our primary position is that this was a Part 3.8 matter, but because we say that Part 3.7 was not engaged because it was not about credibility only, but if we are wrong about that, then we go on to make the submission that it still had substantial probative value, but that is effectively ‑ ‑ ‑

CALLINAN J:   I just wonder whether perhaps Part 3.8 should be regarded as a code in relation to character.  After all, it does say at the outset that the credibility rule is excluded in section 110 and that is a problem because I think all Judges in Melbourne said that – even though there is a difference of opinion about other matters – but all Judges accepted that character evidence could bear both upon credibility and the likelihood or otherwise of committing an offence.

MR BUDDIN:   Absolutely.

CALLINAN J:   So prima facie character evidence may have a dual character.

MR BUDDIN:   Yes.

CALLINAN J:   But the structure of the Act, to me, initially seems to suggest that ‑ ‑ ‑

MR BUDDIN:   That might not be so.

CALLINAN J:   Yes, and that character evidence may fall to be considered pursuant to or in terms of 3.8 only.  I am not asserting that, I am just asking.

MR BUDDIN:   No, I think that may well be right.  Can I just indicate, so that the Court is clear, that there is one thing upon which my learned friend and I do agree and that is that the characterisation of the example that he gave in the murder/perjury dichotomy – your Honours were aware of that – we accept that, we think that is a sensible interpretation.

CALLINAN J:   Another reason perhaps saying that they are distinct is that section 112 says:

A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part –

and it is Part 3.8 –

unless the court gives leave.

Whereas in Part 3.7, there are a number of indications of the circumstances in which a court may exercise its discretion with respect to credibility evidence.

MR BUDDIN:   Yes.

CALLINAN J:   They would not apply to the question of leave, one would not think, as it arises under section 112.  They may be factors, but they are not necessary.

MR BUDDIN:   Yes, there is a leave provision in section 104, of course.

CALLINAN J:   Yes, which again, in a sense, tends to underline the point that each may be a separate code and that contrary to what view we might take at common law, or have been taken at common law of the nature of this evidence, it has to be treated separately for the purposes of this Act.

MR BUDDIN:   Can I just refer your Honours in relation to that aspect to the Law Reform Commission report.  It would appear – I will not take your Honours to it – but it would appear that this came very much at the heel of the hunt because there were some folk who apparently were confused about the provisions being in the same section so the legislature decided to, apparently, on the back of the Law Reform Commission report, to separate credibility and character.  But, as this Court said on a number of occasions, I think Justice McHugh in Palmer’s Case which is now widely referred to, the distinction between facts in issue and credit is extremely difficult to ‑ ‑ ‑

CALLINAN J:   It is a much easier case, Mr Buddin, if we only have to look at Part 3.8.

MR BUDDIN:   I accept that unreservedly.

McHUGH J:   My difficulty at the moment seems to be that whatever way you look at this case, the trial judge erred in allowing the cross‑examination.  If you start at the ruling at page 116, he did not take into account the matter set out in section 192(2)(a), (b) and (c), that is, the extent to which it would be likely to add unduly to or shorten the length of the hearing, the extent to which it would be unfair to the accused and the importance of the evidence in relation to which leave is given.  If you look at the ruling at 281, it seems to me, again, there has been a failure to comply with the directions which that section requires the judge to take into account.  Now, if that is so, then there has been an error and the only question is whether you, bearing the onus, can show that the case comes within the proviso.  Now, what do you say about what I have just put to you?  Is there some error in the analysis I have just put to you?

MR BUDDIN:   Can I come back to that, your Honour?  I just want to consult with those that are instructing me in relation to he latter part.  Would your Honour permit to do that?

McHUGH J:   Yes, certainly.

MR BUDDIN:   Might I just briefly leave the Bar table, your Honour?

McHUGH J:   Yes.

MR BUDDIN:   The first part relates to the advance ruling.

McHUGH J:   Yes.  I mean, it is obvious at that stage that – and we can see that from what appears earlier at page 111 – that what was being referred to as 102, 104 and 106, there being no reference to 110, no reference to 192 and at that stage it seemed – nor to 103, if it is relevance, which I tend to doubt, but in any event, it seems to me that at that stage you have got error and the case has got off to a bad start.  Then the accused is called and gives evidence of character, tries to meet these matters in advance and then the judge reaffirms the ruling at 281, again without considering the matters in 192(2).

MR BUDDIN:   Can I just start with the advance ruling.  It may be that the Crown was misinformed as to the basis upon which he was responding to the then application.  That does not necessarily lead to the conclusion that his Honour was misled.  Can I just make one or two submissions about the nature of the advance ruling?  It is important, in our submission, to recall that not only was it provisional – so, it was not set in stone – but it was also contingent and it was contingent on one fact and that was that the ultimate question of whether or not leave would be granted had, by definition, not then arisen.  As far as the trial judge knew the issue may never have arisen, namely, the accused ‑ ‑ ‑

McHUGH J:   But he says in terms at 116, line 16:

Subject to further developments in the trial I would grant the leave to the Crown unless some other matter arises that would cause me to hold a different view.

Well, that is pretty firm.

MR BUDDIN:   I accept that.  I mean, that was what was likely to happen, subject to the contingency, and the contingency was whether or not she – that is the appellant – gave evidence.

McHUGH J:   Yes.

MR BUDDIN:   Now, the second thing is in relation to advance rulings, the question is, how far does this go?  Would there have been error, I ask rhetorically, if his Honour had simply said, “I will grant leave, in all the circumstances, unless something changes, to cross‑examine”.  In other words, my learned friend seeks to – and I do not criticise him for this – to infer from a failure to state reasons a failure to take into account relevant matters and in ‑ ‑ ‑

McHUGH J:   For a long time I thought it might be unfair to the learned trial judge to attribute to him a failure to take into account the discretionary considerations but when you carefully read the submissions of counsel starting at 111 and when you read what was put by Mr Skinner, which the judge recites, and what is put by the Crown, and you have regard to the sections to which has been referred, it seems to me the conclusion is just overwhelming, that the judge did not consider 110 and he did not consider 192.  To me, at the moment, 192(2) seems to be the critical factor because the judge is bound to take them into account.

MR BUDDIN:   I accept that.

McHUGH J:   Then the accused is obviously going to call this evidence and they make the tactical decision to put this material in advance but, given what the judge had said at 116, I do not see that you can criticise counsel for the accused even if it is a tactical decision.  Then the judge at 281 confirms his earlier ruling, again without giving any consideration to the matters that he is required to take into account under 192(2).  So, given a second chance, the judge again falls into error and, that being so, it seems to me the only thing the Crown has going for it are the matters that I put to Mr Game earlier today, that given the accused’s answers, the directions of the trial judge, that you could not be satisfied that there was a miscarriage of justice or that you had affirmatively established that there had been no miscarriage of justice.

But this accused was cross-examined - on my count, 102 pages of cross-examination.  Eighty-four pages went to the issues; 15 pages went to the family law documents, and then when Mr Walsh was called, one of the last witnesses in the case, even three pages of his cross-examination was directed to the practice of a solicitor taking an affidavit.  Again, almost at the heel of the hunt this question as to how an affidavit be taken, whether it be sworn in the presence of the client, in the presence of the solicitor, et cetera, was again raised.

MR BUDDIN:   Well, your Honour, can I candidly concede that character was at the forefront of this case on both sides in one way or another.

McHUGH J:   Once you concede that ‑ ‑ ‑

MR BUDDIN:   Well, I do.  Perhaps I overstated it ‑ ‑ ‑

McHUGH J:   Well, I think you have lost me.  Unless you can get me back again, Mr Buddin, I really think once you ‑ ‑ ‑

MR BUDDIN:   Now you are mispronouncing my name as well, your Honour.  I have already lost.  I am just going to go and ring my - no, I did overstate that.  The concession I wish to make is that character was significant in this case on both sides, and that seems to underscore what your Honour was saying to me, but we do not resile from ‑ ‑ ‑

McHUGH J:   Yes.

GAUDRON J:   Well, having made that concession, how do you say the proviso is to be applied, because that is ultimately what you must come to, is it not?  It is significant on both sides.  How can you say it did not lose a real chance of acquittal?

MR BUDDIN:   Directions.

GAUDRON J:   Yes.

MR BUDDIN:   The evidence that actually emerged which went to her probity, if that is the correct word, honesty, integrity, and we rely on the significance of the facsimile in the Crown case.

HAYNE J:   How can that be where the hypothesis for consideration is that the accused has been asked questions that, had the discretion been exercised properly, may not have been asked of her?  How can the impression thus created by the accused in answer to questions which the hypothesis is she may not have been asked not be a matter that is relevant to the verdict?

McHUGH J:   Particularly after she made that admission.  There was just that tiny opportunity the Crown had to damage her character evidence, having regard to her evidence and the judge left it to the jury.  It was just a tiny aspect but you have to say that you have established that that could not have affected the outcome in a case where something like about 18 per cent of the cross‑examination, or at least 15 per cent of the cross‑examination, was directed to this very issue.

MR BUDDIN:   We submit that it is central to our system of jurisprudence that judges instruct and juries follow judge’s instructions.  I mean, if not, the matter is set at nought and Stirland ‑ ‑ ‑

GAUDRON J:   Well, ultimately they were instructed that it was a matter for them as to how they assessed what that was, whether it took away from her character or not.  It was left to them to decide.

MR BUDDIN:   But not in relation to the forgery matter.

GAUDRON J:   Yes.  Well, the slapdash.

MR BUDDIN:   All right.  Yes.  They had evidence that it might have been unwise but not improper so there was an amelioration of what might otherwise have been thought to be the case.  So they are the matters that we put in relation to the proviso.

So far as the other matters are concerned, there is only one thing that I wanted to deal with, and that is the question of the voir dire.  My learned friend made considerable play of that.  Can I simply say a number of things about it, some particular and one general.

GAUDRON J:   It is a bit academic, is it not, really?  But, I mean, please go ahead.  I mean in the context of this case, it is a bit academic.

KIRBY J:   You were an academic once.  Why not go ahead with it, then?

MR BUDDIN:   Yes – once.  Perhaps just in relation to this case:  first of all, no voir dire was sought by the appellant.  What advantage was there, from the appellant’s perspective, to have a voir dire in which the only evidence was going to be her tendering herself for cross‑examination?

McHUGH J:   I also have real difficulty in seeing how these voir dires can work.  I think this case is a good illustration of the imprudence of adopting these advance rulings before you know what the case is about.  There may be some areas of evidence which you can rule on in advance, but ‑ ‑ ‑

MR BUDDIN:   Can I say that the theory of them is something that I think we would embrace, but it does not always work like that in practice, particularly where one does not know whom the assigned trial judge is and therefore whoever might be hearing the matter prior to empanelment does not necessarily want to bind the trial judge.  It works really well in a case where the entirety of the Crown case depends on the admissibility of a piece of evidence.  The matter might either go away, or if admitted, it resolves itself in the plea.

McHUGH J:   But where discretionary considerations are involved, it seems to me you are embarking on a very dangerous course because anything can happen in the course of it.

MR BUDDIN:   Yes.  The other suggestion that relates to this is, my learned friend was suggesting that a Hoch-type voir dire should be undertaken on the basis that by analogy there was a possibility of concoction.  Well, if that was going to be undertaken, then we would be in a

very sorry state indeed.  Every time there was a suggestion of concoction by a single witness – assume we have a single witness in relation to two counts and an indictment, are you seriously going to have a voir dire in that situation?  I mean, if this is about case management, advance rulings, that is going to blow that proposition completely out of the water.  So I felt that I needed to address that particular matter.

CALLINAN J:   But Justice McHugh’s point is very much underlined by the fact that so much is discretionary in this Act.

MR BUDDIN:   Yes, I accept that.  Unless there are other matters of an academic or non-academic matter ‑ ‑ ‑

GAUDRON J:   Yes, thank you, Mr Buddin.  Yes, Mr Game.

MR GAME:   I just wanted to make a couple of quick points.  The first is that – and this has been said more than once - with respect to the examination-in‑chief at 246, not only does the accused’s counsel know that the ruling was made at page 116 but the accused’s counsel knows that Mr Anderson has been subpoenaed to give evidence, he is sitting outside the court, but the judge has declined to give any further rulings on the recalling of Ms Wailes.  So that the cross‑examiner is going to put to her the Ms Wailes allegations because the cross‑examiner has an expectation that he may call Ms Wailes in reply and no ruling has been given on that at that point.

So the whole of the respondent’s arguments in effect, in our submission, are undone by the actual chronology of what occurred in this case, bearing in mind the preliminary ruling, the declining to give any further rulings prior to this point and the fact that at that moment it was expected that there was a prospect of Ms Wailes being called in reply and Mr Anderson being called, who was outside court subject to the short service of the subpoena.

The other matter with respect to some questions raised by your Honour Justice Hayne in respect of section 112, that passage that I referred to from the Law Reform Commission seems to contemplate that section 112 is the descendant of the other statutory provisions requiring leave before one cross‑examines.

Those are, of course, the descendant of the 1898 Act and the words – and they are in common language and I have referred to this before, but the common words are “he shall not be asked and, if asked, shall not be required to answer”.  So the history of the provision really has got some significance in terms of what one is allowed to do.  Just a couple of other questions.  With respect to that cross‑examination that my learned friend referred to of the appellant at page 341, where Mr Skinner said, “We have not put Ms Wailes’ allegations”, but already at page 335 Ms Wailes’ statutory declaration had been put in the hands of the accused.  So what Mr Skinner said was, in our submission, by the by at that point.

Likewise with Mr Galitsky about the accused being scrupulous, that was already after the accused had been cross‑examined on the allegations with respect to forgery.  Finally, the single matter that the prosecutor latched onto and which was addressed by the trial judge possibly destroying the claim of good character was the cross‑examination in respect of what was described as the sloppy practices.

CALLINAN J:   Mr Game, what do you say about Part 3.7, the credibility provisions?  Do they apply or is it entirely governed, this case, by 3.8?

MR GAME:   Well, your Honour, we have put in argument that it survives.  We put in argument that parts of it survive, but not section 102.  That is our position.

McHUGH J:   But does it not come down to this, Mr Game, that whether 3.7 applies, 3.8 applies, the fact is that it is academic in this case?  The judge had to give leave and 192 directed him to certain matters and it seems to me reasonably plain that those matters were not taken into account by the learned judge whenever he exercised his discretion.

MR GAME:   Yes.

McHUGH J:   So does it matter, except for the purpose of legal theory, whether it was 3.7 or 3.8?

MR GAME:   It may matter in some other context.  It does not matter in this case ultimately but we would say that once one concedes, as our opponents concede, that the good character was central to this case and having regard to what the Crown Prosecutor put as undermining the good character, it would be impossible to be satisfied that there has been no substantial miscarriage of justice, bearing in mind ‑ ‑ ‑

KIRBY J:   Can I ask, in relation to the orders that would follow if you were successful, your client, as I remember, has served entirely the sentence that was imposed by the trial judge and confirmed by the Court of Criminal Appeal.  How, in those circumstances, in the event that you are successful, does this Court set aside the orders of the Court of Criminal Appeal and order a retrial or, the sentence having been served in full, does it simply set aside the conviction?

MR GAME:   Your Honour, it is a discretionary question and there are decisions of this Court such as DPP (Nauru) v Fowler that say that it is a discretionary question as to whether or not to order a retrial in circumstances where the sentence has been served, but I will have to say and we would submit that in discretion the Court should not order a retrial.

McHUGH J:   It is only six weeks ago or less in Spies’ Case.

MR GAME:   Yes.  You ordered a retrial in Spies.

McHUGH J:   Even though he had served the sentence.

MR GAME:   And you ordered a retrial in McKenzie.

McHUGH J:   Yes.

KIRBY J:   But there have been cases where the Court did not order a retrial.  I cannot bring them to mind now but the matter I want to focus on is the fact that your client has served in full the sentence that was imposed on her.  I mean, would it not be a double jeopardy of an intolerable kind in those circumstances then to order that she be retried.  I realise that in McKenzie the problem was not dissimilar in that Mr McKenzie was a solicitor and, therefore, the Court took the view that it was a matter for the prosecution to decide and I think he was submitted to retrial.

MR GAME:   He went back to trial, yes.

KIRBY J:   But in this case I think the position is different from McKenzie.  Here your client has served in full the sentence and I just do not quite know what is proper in the exercise of this Court’s discretion in those circumstances.  I do not know whether the Crown asks that we leave it to them or ‑ ‑ ‑

CALLINAN J:   Does she want a retrial to vindicate her name, her reputation?

MR GAME:   We would ask the Court not to order a retrial, so I suppose that is an answer to that question.  It is very hard to find from the cases a pronunciation of what the principles are about whether or not to order a retrial or whether or not to ‑ ‑ ‑

KIRBY J:   I think the principle is that the Court does not assume the mantle of the prosecution service.

MR GAME:   Yes.

KIRBY J:   It simply leaves it to the prosecution, but that is on an assumption that there is something for the prosecution to do, whereas here it is a bit hard to see how the prosecution could properly direct a retrial, given that the sentence has been served in full.

MR GAME:   Your Honour, this is not really in answer to that question either, but in the New South Wales Court of Criminal Appeal, when appellants had served their sentences, it has often been the case that retrials have not been ordered and there have been cases where appellants have been very close to the end of their sentences and retrials have not been ordered and there is a case called Honeyset which is a decision of Justice Hunt that examines some of the propositions around that particular notion; and the decision of this Court in DPP of (Nauru) v Fowler is a case that also suggests that the Court has an overriding discretion as to whether or not to order a retrial in those circumstances.  But just how ‑ ‑ ‑

GAUDRON J:   Certainly a retrial will not be ordered to allow a different case to be put at a second trial.  That much is clear from the decisions of this Court.

MR GAME:   Yes.  But I would put to the Court that the staleness of the allegations – they are very old allegations – is a factor that would weigh in the exercise of discretion as to whether or not ‑ ‑ ‑

McHUGH J:   That is a hard argument to run these days.  These sex cases, people put up for trial matters 20 years old, 30 years old.

GAUDRON J:   Perhaps we could find out what the respondent says on this issue.

MR GAME:   Your Honour, I do not know whether I am being of any assistance at all, but all I can say is that there are cases where they have been ordered and there are some ‑ ‑ ‑

McHUGH J:   Yes, I was in a case in the Court of Criminal Appeal called McEwen, in a rape case - I think McEwen was the name of it – it is a reported case and it was held that the onus had been put on the accused to show honest and reasonable mistake, and the Court followed Morgan.  The accused in that case had served some of the sentence, but certainly nowhere near all of it, and the Court refused to order a new trial in that particular case.

MR GAME:   In the case of Tim Anderson, the latest Tim Anderson, the court did not order a retrial, notwithstanding the fact that the court was not satisfied that the verdict was unsafe and unsatisfactory and notwithstanding the fact that he was only a short way through his sentence.

GAUDRON J:   It was the Court of Criminal Appeal.

MR GAME:   The Court of Criminal Appeal, and that is a reported decision.  But that was concerned with discretionary factors concerning partly the conduct of the case by the way in which the prosecution had conducted their case, that is to say they had changed their case mid course and that may explain that decision.  The only other thing I can say is that it is not a practice, but frequently the Court of Criminal Appeal does not order retrials where appellants have almost served their sentences.  I am sorry that I cannot be of more assistance.

GAUDRON J:   Yes, Mr Buddin.

MR BUDDIN:   I do not promise to be any more use, your Honour.  We would ask that if the Court came to the view that it ought to intervene, that it order a retrial and acknowledge the fact that it is properly a matter for the prosecuting authorities.  This case is not really distinguishable from McKenzie where Mr McKenzie had served the entirety of his custodial sentence.  The case that my learned friend refers to of Anderson – and he did advert to this – turned on really the fact that, to use vernacular, that the Crown had moved the goalposts during its case and that it was inappropriate, in those circumstances, together with the paucity of the evidence, or relative paucity of the evidence, as being reasons for taking a different course.

KIRBY J:   There are two considerations to distinguish this a little from McKenzie, as I recollect it.  One of them is that – as I remember it, I may be wrong – Mr McKenzie still had some supervision after sentence.  Did he not have some parole obligations when the matter came before the Court?  Any way, that can be checked.

MR BUDDIN:   I am not sure.

KIRBY J:   That will be on the record.  But the other point to remember here is that McKenzie was much more – well, I thought – a strong Crown case.  Here Justice McHugh has at least expressed the view that this was, in its substance, a weak Crown case.  Now, I do not know whether that is a matter for this Court to consider or whether that is a matter for the Crown to weigh up but it does seem a bit odd where the sentence has been served in full to require a retrial.  I mean, what is the point of it?

MR BUDDIN:   Well, that might be ultimately the decision that is reached.  The question is ‑ ‑ ‑

McHUGH J:   Well, we did in Spies.  In Spies recently, only a few weeks ago, we did not order a new trial on the conspiracy count because we said it was misconceived, the Crown case was misconceived ‑ ‑ ‑

MR BUDDIN:   But on the alternative count ‑ ‑ ‑

McHUGH J:   ‑ ‑ ‑ but on the 229(4) count we ordered a new trial, even though he had served his sentence because we said there is a public interest in company directors who breach their duties being tried and convicted if they are guilty ‑ ‑ ‑

MR BUDDIN:   And the same applies to solicitors, with respect, and ‑ ‑ ‑

GAUDRON J:   And if it comes down to weakness or strength of the Crown case, I for one would think that is not a matter for the Court as such.

MR BUDDIN:   I was just about to submit that, your Honour, that reasonable prospect of conviction ‑ ‑ ‑

GAUDRON J:   I mean, it is a question to come into account in the proviso perhaps but not on retrial.

MR BUDDIN:   I entirely embrace that, your Honour.  It is a quintessential question for prosecuting authorities:  are there reasonable prospects of conviction?

GAUDRON J:   Yes.  The question ultimately must be whether it would be unfair to order a new trial in the sense that that is ‑ ‑ ‑

MR BUDDIN:   We certainly do not disagree with the proposition my learned friend advances that it is a question of discretion, but it would be very rarely, in our submission, exercised.

GAUDRON J:   And one can understand that it is unfair to order a new trial if it is simply to enable the Crown to put a different case from that on which they relied at first instance but beyond ‑ ‑ ‑

KIRBY J:   Would that not be what you would be doing?  You would be concentrating on the indictment instead of bringing in evidence of extraneous prejudicial suspicion and accusation.  That would be an utterly different case.

MR BUDDIN:   I assumed that your Honour did not seriously invite a response in relation to that.

GAUDRON J:   No.  I think we have heard sufficient from everyone, have we not, Mr Game?

MR GAME:   I am sure you have, but I think DPP (Nauru) v Fowler might say something about the weakness of the Crown case, and I am not positive about that.

GAUDRON J:   Thank you.  The Court will consider its decision in this matter.

AT 4.33 PM THE MATTER WAS ADJOURNED