Stanoevski v The Queen

[1999] HCATrans 473

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S47 of 1999

B e t w e e n -

LILJANA STANOEVSKI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 1999, AT 9.30 AM

Copyright in the High Court of Australia

MR C.A. PORTER, QC:   In this matter, if your Honour pleases, I appear with my learned friend MR S.J. ODGERS for the applicant.  (instructed by Greg Walsh & Co)

MR A.M. BLACKMORE:   If the Court pleases, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

MR PORTER:   Your Honours, this matter involves, in our submission, an extremely important question and that is, what is the correct approach when a person raises good character and the Crown seeks to raise in reply a matter of bad conduct which is disputed by the accused.

GAUDRON J:   That is one way of putting it, is it not?  The other way of putting it is, of course, that in evidence in‑chief the applicant gave certain evidence.

MR PORTER:   No, with great respect, your Honour, she only gave that evidence in anticipation because his Honour had ruled that that evidence was going to be permitted to be raised against her.  So, in our submission, nothing turns on the fact.  She was told that if she raised good character, then the judge would permit this to be raised against her.  Therefore, in anticipation, she decided to raise the good character nevertheless, and in anticipation, raised the matter that she knew was going to come.

KIRBY J:   But does that not create a problem for the Court?  The record shows that she is the person who put character into evidence?

MR PORTER:   But in our submission nothing turns on that.  The record shows she put character into evidence after her counsel was denied his application that she could be permitted to raise character without that matter being raised.

KIRBY J:   I appreciate that, but if you look at it from the point of view of searching for a case in which to examine this issue, is it not better examined in a case where this complication has not arisen?

MR PORTER:   In our submission, with great respect, your Honour, there is really no complication about it.  She said, “I want to raise good character.  If I do, will you rule as to whether you will permit the alleged forgery charge to be raised against me?”  The judge said, “I will”, so therefore she said, in evidence, “This is the alleged forgery charge and there is nothing in it”.

GAUDRON J:   Yes, but having said, “and there is nothing in it”, that virtually invited cross‑examination, did it not?

MR PORTER:   Of course it did, if your Honour pleases.  But she was going to be cross‑examined anyway.  That is the whole point.  We are disputing the original ruling of the judge which said, in effect, “I will permit that cross‑examination”.  Your Honour, this case is, in effect – the judge’s ruling and the Court of Criminal Appeal have followed Stalder’s Case which is the decision of Mr Justice Street and Mr Justice Begg with Mr Justice Yeldham dissenting, and that is the case that has governed the situation in New South Wales ever since 1981.  What we would submit is this, if your Honour pleases, that Stalder’s Case was both wrongly decided and is inapplicable anyhow.

Firstly, about Stalder’s Case.  Section 413 of the Crimes Act upon which the court relied, as in Stalder’s Case, has since been repealed by the Evidence Act.  Secondly, it was a majority judgment in which Mr Justice Yeldham dissented, and dissented in effect along the lines of our argument here.

KIRBY J:   What did he say?

MR PORTER:   He expressed serious reservations about whether one could produce evidence of specific acts of misconduct other than convictions, which was the old common law situation.

KIRBY J:   On the basis that it leads off to a damaging side issue.

MR PORTER:   That is right.  I will come to that in a moment, if your Honour pleases.  Thirdly, the appellant was in person in Stalder’s Case so there was no real argument for the defence.  Fourthly, the matters which were raised in Stalder’s Case, two armed hold-ups, were not matters which were denied.  The evidence was not even a subject of cross‑examination.  Fifthly, we say that Stalder’s Case leads to unjust results.  Now, if we can take it a bit further, if your Honour pleases.  Where this situation arises as it arose in this case, the normal procedure is, and ‑ ‑ ‑

GAUDRON J:   What is the normal procedure under the new Act?  That is the problem, is it not?

MR PORTER:   No, that is exactly what I am coming to, your Honour.  Your Honour has anticipated me.  The normal procedure under section 112 of the Evidence Act is that leave has to be obtained.  Now, your Honours ‑ ‑ ‑

GAUDRON J:   But there is also section 104(4).

MR PORTER:   I will come to that, your Honour.

GAUDRON J:   There are two provisions which seem to authorise the grant of leave.

MR PORTER:   Your Honour, the situation that then arises is this, that the judge should obtain, whether by voir dire or otherwise, the category into which the evidence falls.  The category to which we are referring is firstly, the evidence may be the subject of a conviction or finding by a court such as a statutory tribunal, so that the Crown is seeking to raise a matter of proved misconduct.

GAUDRON J:   Where does that come out of section 112?

MR PORTER:   No, it is a matter, if your Honour pleases, which we say the judge has to come to when he is exercising his powers under section 112.

GAUDRON J:   It was very difficult because he was not asked to in this case, was he?

MR PORTER:   Yes, he was, your Honour.

GAUDRON J:   To find out what category it was in.

MR PORTER:   Your Honour, it was made quite clear to him, if your Honour pleases.  The first category is where the evidence is proved, where the misconduct is proved.  The second category is where the misconduct is, in fact, admitted, which is Stalder’s Case, where, although there is no conviction or finding of the court, it is not denied as in Stalder’s Case and, in fact, the witnesses as to the armed hold-up were not even cross‑examined.

It was made manifestly obvious to his Honour that it fell into the third category, namely, that it was not the subject of proof in any court and it was in fact denied and disputed.  Now when that situation arises, firstly, we would submit that on the basis of the old common law principles – and on an application of special leave I can hardly go into it in great detail – but based on the old common law principles evidence of matters which were neither proved nor admitted cannot be given by the Crown in reply at all.  But assume that they can, then you have the problem, if the question is asked and denied, as it was here, were you guilty of forgery, no, well, the very fact that the question has been asked and denied involves ‑ ‑ ‑

GAUDRON J:   It is not simply a question of forgery, though, is it Mr Porter?  There is also the question of ‑ ‑ ‑

MR PORTER:   Professional impropriety.

GAUDRON J:   Well, witnessing a signature.

MR PORTER:   But, if your Honour pleases, that came out in the course of a cross‑examination which, in our submission, we say, should not have been permitted at all for the reason which I am going to put to your Honour now.  There are two reasons why leave should not have been granted in this case, and in similar sorts of cases.  The first reasons is that if the question is asked and denied, it is impossible to correct it by simply directing the jury there is no proof of it.

If your Honour takes the simple case of the back to back sex assault case where someone like a school teacher is accused of sexually assaulting two different pupils.  He gets a back to back trial, because they are not similar acts.  In the first trial he raises his good character, and he is then tried on the second trial as well.  That is what happens under Stalder’s Case, and it is quite wrong.  If perchance it is limited to his mere denial, say it happened there as here, that in the second case he said “I deny I assaulted girl B, just as I deny I assaulted girl A”, the judge then directs the jury that there is no evidence he assaulted girl B, but it is naive to suggest that that disposes the matter and he has not suffered a grave prejudice.

GAUDRON J:   But there is no doubt in this case, is there, that the trial judge had a discretion to permit the cross‑examination?

MR PORTER:   We would submit, if your Honour pleases, the discretion has to miscarry in circumstances where – if your Honour pleases, firstly, we do say there is a doubt as to whether he had a discretion.  He may well ‑ ‑ ‑

GAUDRON J:   Would you argue that under 104(4) there was a discretion?

MR PORTER:   No, but if your Honour pleases, it is the same sort of leave as under 112.

GAUDRON J:   Yes.  But what I am saying is they were talking about a discretionary judgment.

MR PORTER:   Yes.  Your Honour, my first submission was, in fact, that now that section 413 of the Crimes Act has been repealed, there is no discretion to permit it.  But assume we fail on that, then, we say, the discretion has to miscarry if you do what the trial judge did in this case, namely, permit the question to be asked, refuse leave for evidence to be called about it, and leave the jury in a position where they are told the question has been asked but there is no evidence of it, but the smear is there.

GAUDRON J:   Were there submissions to the trial judge about the manner in which he should exercise this discretion and the reasons for it?

MR PORTER:   Yes.  If your Honour pleases, I am not in a position to say precisely the reasons that were put to the trial judge.  But if your Honour pleases, the judge’s summary at page 6 is very close to what I have just been putting:

Mr Skinner says –

that is who was counsel for the applicant:

“Well, in that event the jury is left with an aura of suspicion about the situation” –

and that is the very matter I put, that once you permit the question to be asked, then the aura of suspicion remains whether it is denied or not.  But if you permit the question to be asked and investigated, then you get an even worse situation because when the question is asked and investigated, you have the accused person in the position of being tried for two matters at the same time; and, in the second, all the procedural protections of the common law go.  You see assume for the sake of ‑ ‑ ‑

GAUDRON J:   Were there procedural protections?  Do those procedural protections carry through?  That is the real question in this Act.

MR PORTER:   If your Honour pleases, let us go to the matter that eventually finished up damaging this applicant, that is the question of witnessing signatures, and so on.  Had a charge been brought against her before the Statutory Committee as it once was, and now it is the Administrative Appeals Tribunal, I think, had a charge been brought against her before the professional tribunal she would have had the evidence presented against her.  She would have the chance to cross‑examine her accusers and she would then, after the conclusion of the case against her, have been put in a position of calling her evidence in reply.

But under the position that Stalder’s Case apparently permits, or those who have applied Stalder’s Case permits, the person who is tried on the collateral issue is denied all the normal procedural protections because the person who is tried on the collateral issue commences by being cross‑examined about the offence and the evidence against him is only called after the cross‑examination against him or her, as the case may be.  What occurred in this case was, the allegation was that she had been guilty of forgery, that was denied as there was no evidence of the forgery.  But in the course of cross‑examining her about that collateral matter, it emerged that she had witnessed an affidavit in a manner that fell short of proper professional standards.  If that matter had been the only matter, and after all it was the only matter that ultimately emerged, should leave have been given at all?  It was hardly ‑ ‑ ‑

GAUDRON J:   The difficulty I have with what you are saying Mr Porter, is that it is a bit one sided because what you had was the trial judge’s ruling that if you led good character, then he would permit the cross‑examination.  So really there was an election to be made.

MR PORTER:   I was waiting, with respect, for your Honour to say that because that is what is always said in this situation.  They say, “All right, look, it is your fault, you raised good character”.  But, your Honour, good character is a crucial issue in these cases and the right to raise good character is a crucial issue and you do not get over the problem, with great respect, by saying, “Look, you could have avoided the problem by not raising your character”.  In the case of the school teacher accused of two offences, with a splendid character before the accusations, you can say to him, “Well, look, you are being tried on separate trials, if you put your character in issue, we will try you on both together”.  That is not fair.  That is simply depriving him of the right to raise his character.

KIRBY J:   Did not the trial judge here say that your client would go to the jury as a solicitor and that that itself would be an indication, prima facie, of good character?  Did he not caution when the suggestion was raised as to inviting this problem upon his trial?  Because I can certainly see that once the matter is raised the trial appears to have gone off a bit into the side issue instead of the issue on which your client was being tried.

MR PORTER:   But, if your Honour pleases, my client was being tried on a matter of what one might call unlikely dishonesty by a person of good character.  She was being accused by two of her ex‑employees who were obviously accomplices, if there had been a crime.  The question of my client’s character was probably crucial because had she been able to put up her character unblemished, she would probably have been acquitted.  That is how crucial these matters are.  So that it is not to the point to say to her, “Look, you could have got out of this dilemma by not raising character at all”.  It is almost as sensible as saying, “You could have got out of this dilemma by not giving evidence at all.  After all, you did not have to give evidence”.  Fundamentally the raising of good character in a case where a person such as a solicitor, or where anyone, is charged with dishonesty is of crucial importance to the defence.

KIRBY J:   It is not a complete answer to your argument because there will be accused who are not solicitors.

MR PORTER:   That is right.

KIRBY J:   And we have to look at it on the basis of principle.

MR PORTER:   But actually, if your Honour pleases, these days with 12 jurors and much more wisdom among juries than many judges sometimes think, with respect, it by no means follows that there would not be one juror saying, well, here is a solicitor who has not raised her good character.

GAUDRON J:   What is the error though?  Once you get into a discretionary area, what is the error that you say made the discretion miscarry?

MR PORTER:   The proposition for which we are arguing is simply this, that where the bad conduct or misconduct alleged by the Crown in answer to the raising of good character by the accused is denied, then it is inevitably unfair to the accused to permit it to be raised because it will lead to one of either two things.  It will lead to an allegation which is non‑probative and simply a smear, or it will lead to an unfair trial within the trial.

GAUDRON J:   But that virtually eliminates the discrimination, does it not?

MR PORTER:   Only in respect of the cases where the misconduct is denied.

GAUDRON J:   Well, of course it would be denied.

MR PORTER:   In Stalder’s Case it was not denied and they were two cases of armed hold-up.  But fundamentally, if your Honour pleases, my submission gets very close to the old common law that the reason for the old common law which only permitted matters of proved misconduct to be raised is manifest when you see what happens when they are raised.

KIRBY J:   But where we have a new statute which gives a judge a general power to give leave, can that stand with that proposition or are you not trying to have the chains of the common law clinking in the background when you have an entirely new Act to govern ‑ ‑ ‑

MR PORTER:    No, if your Honour pleases, we are saying, in effect, where the misconduct is denied then there is ‑ ‑ ‑

KIRBY J:   There is no leave, there can be no leave.  That seems to defy the statute.

GAUDRON J:   May I take ‑ ‑ ‑

MR PORTER:    Can I just answer Justice Kirby.  Your Honour, our submission may well leave room for some cases where the misconduct is denied, where there is a doubt about the denial and where there is a nominal denial.  But fundamentally, it should never be allowed to reach a situation of a denied accusation being left to smear the case of the accused or a trial within a trial in which he is denied proper process.  That is what our submission amounts to.

GAUDRON J:   Can I take you to the statute?  I know your time has run out.

MR PORTER:    Yes.

GAUDRON J:   What do you say is the difference between sections 112 and 104?

MR PORTER:    If your Honour pleases, 112 is limited to questions of leave to cross‑examine about character of the accused.

GAUDRON J:   No, it is “arising out of evidence of a kind referred to in this Part”.  The reason I am asking you this, Mr Porter, is it seems to me under 104 there may be some requirement of probative value before leave can be granted, which may support your argument.  But 112 does not seem to have that link.

MR PORTER:    If your Honour pleases, nevertheless even though 112 has not got that link, we would say that 104 means what it says, namely, it is headed “Further Protections”, now whether that can be taken to account is another question.

GAUDRON J:   The reason I ask is, I do not think 112 has anything to do with this case.

MR PORTER:   Your Honour, without taking a position on that, I can simply say that 104 is added to 112 so that, fundamentally, if 104 gives a better protection than 112, then 104 applies.

GAUDRON J:   Now Mr Porter, you are seeking special leave here.  We need to know the argument.

MR PORTER:   Well, that is so.  Our argument relies on section ‑ ‑ ‑

GAUDRON J:   And we need to know whether it is 112 or 104, because 112 is the cross‑examination of an accused, or a defendant as it is called in the Act, “about matters arising out of evidence” of an opinion about the defendant adduced by – so you go back to 111.

MR PORTER:   Section 112 does qualify ‑ ‑ ‑

GAUDRON J:   Section 110.  You could cross‑examine the defendant under 112 about character evidence given by others.  But it seems if there was cross‑examination in this case, it was under 104, simply because she had raised her good character.

MR PORTER:   Well, if your Honour pleases, we do not dispute the fact that it is under 104.  We do not dispute the fact that section 104 applies to the situation.

GAUDRON J:   To the exclusion of 112?

MR PORTER:   No, if your Honour pleases, with respect, we would say both apply.

GAUDRON J:   Why does not ‑ ‑ ‑

MR PORTER:   I will tell you why I say that both apply, because 112 is concerned with two matters.  One, the credibility of the accused; and the other the fact that having a good character he is unlikely to have committed that particular offence.  Whereas 104 seems to be concerned solely with the credibility of the accused.

GAUDRON J:   Yes.

MR PORTER:   That is why it may be that we have to rely on both.

GAUDRON J:   Well, that is right.  Not that you have to rely on both, that the respondent has to rely on both.  If you look to 104 that seems to be an elaboration of the exception in 103, and that exception only applies if the evidence has substantial probative value.

MR PORTER:    That is right.

GAUDRON J:   The question then is, in a case such as this, whether ‑ ‑ ‑

MR PORTER:   If your Honour pleases, that links up very much with my submission, that if the judge knows the question is going to be denied, then you are permitting a matter to be raised which has no probative value but nevertheless smears the accused.

GAUDRON J:   You seem to have a footing in 104, but I have difficulty with 112.

KIRBY J:   It is enough for you if you have a foot in in either section, is it not?

MR PORTER:   Your Honour, when one is swimming in a storm, any plank is welcome.

KIRBY J:   Your time is up.  Perhaps we can hear what Mr Blackmore says about the planks that you have called in aid.

MR BLACKMORE:   We would submit that, in fact, the evidence was admissible under 110.

GAUDRON J:   Section 110?

MR BLACKMORE:   Yes.

GAUDRON J:   There was no real evidence in this case, was there?

MR BLACKMORE:   No.

GAUDRON J:   It is cross‑examination.  What does 110 say?

MR BLACKMORE:   Obviously you had to ask the question to get the evidence, so it is ‑ ‑ ‑

GAUDRON J:   Well you did not get any evidence.

MR BLACKMORE:   No, we did not ultimately get any evidence.  No, that is true.

GAUDRON J:   “Evidence about character”, what do you say about 110 made this cross‑examination permissible?

MR BLACKMORE:   Where section 110(1), that brings in 112.

GAUDRON J:   That brings in 112.  I do not see how it applies.  You had better explain that to me, Mr Blackmore.

MR BLACKMORE:   Section 110(1), where there has been:

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.

She had admitted such evidence already.  By the time ‑ ‑ ‑

GAUDRON J:   She had adduced ‑ ‑ ‑

MR BLACKMORE:   She had adduced evidence from a police officer that she had no convictions and then she had given evidence herself.

GAUDRON J:   That is certainly how it developed, but at the time when the ruling was made, she had not, had she?

MR BLACKMORE:   She had not done anything at that stage, because that was all pre‑trial, but her intention was to lead evidence of good character.  There was no doubt that that was the basis upon which she was making application.  Then if we go to subsection (2):

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

and it was admitted in this case.

GAUDRON J:   Are we talking about the policeman’s evidence?

MR BLACKMORE:   Both.

GAUDRON J:   The policeman’s evidence and what?

MR BLACKMORE:   And her evidence.

GAUDRON J:   Her evidence about what?

MR BLACKMORE:   Her evidence about her own good character.

GAUDRON J:   I think for the purposes of this section we need to know precisely what evidence that is.

MR BLACKMORE:   I am not sure that it is even in the book in that form, your Honour.  I could take your Honour – I will come back to that anyway.  I am sorry, your Honour, if I can just come back to that point and just read on to the section.  And I can limit, for the purpose of the argument, in any case, to the evidence in relation to the police officer.  In my submission it does not make any difference.

GAUDRON J:   But the cross‑examination – what did the police officer say, she was not known to the police?

MR BLACKMORE:   She had no convictions, yes.

GAUDRON J:   How did cross‑examination about the state of affairs with the complaint of the Law Society arise out of the policeman’s evidence?  It seems to me you have to get into 112.  That is what it is talking about, matters arising out of that evidence.

MR BLACKMORE:   I am sorry, your Honour, but our submission is that we read that more generally than your Honour is putting it.  It is arising out of this Part.

GAUDRON J:   No, it is “arising out of evidence of a kind” ‑ ‑ ‑

MR BLACKMORE:   Out of “evidence of a kind referred to in this Part”.

GAUDRON J:   Yes, but presumably it means the evidence that is actually led.  You cannot have cross‑examination at large, can you?

MR BLACKMORE:   No.  To start with you need leave and I agree with my friend in one respect, that this all goes back to the original decision that was made by the trial judge as to whether or not he should grant the Crown leave to call this evidence.

KIRBY J:   Once you concede that, you have a bit of a problem, do you not, because the trial did appear to go off onto a tangent and at least there was a risk that once you allow other material to come into the trial you demolish all the protections that our trial process provides to concentrate the mind of the jury on the matter that is charged, as distinct from other things.

MR BLACKMORE:   But the sections themselves, 110 and 112 are wide enough to allow for evidence which is directly or indirectly relevant to character, and good character ‑ ‑ ‑

GAUDRON J:   But the leave provisions are specific, “matters arising out of evidence of a kind referred to in this” section.  So there is a construction question on whether you can be cross‑examined generally as to character under 112, whether leave can be given generally as to character, or only as to the matters about which evidence was given.

MR BLACKMORE:   There is a construction question in relation to that, and our submission ‑ ‑ ‑

KIRBY J:   If Mr Porter is right, Mr Porter has a lot of experience in criminal trials, and if he says there is a matter of forensic reality, unless you can get evidence of good character you really are behind the eight ball, then that construction question is quite an important question for the running of trials under this Evidence Act which applies not only in this State but in other jurisdictions.

MR BLACKMORE:   It is not the very question that he has been asking, with respect, though.  Because he wants it to be framed in the common law, or at least in the way the common law was framed, that only convictions, in effect, are permitted.  But if your Honours read section 110, and again we are talking about a matter of principle, so this applies to other cases as well, how could it ever be said that there would be a conviction by implication?  Clearly the section itself considers that other evidence will be called.

GAUDRON J:   How can there be – I did not follow that?  You said something “by implication”?

MR BLACKMORE:   How could there ever be a conviction by implication?

GAUDRON J:   Conviction?  I do not ‑ ‑ ‑

MR BLACKMORE:   If there is a conviction it is able to be proved by a certificate.  But the section actually uses the words “directly or by implication”.  What evidence could be called that would imply a conviction?

GAUDRON J:   No, that is implying none.  That is implying good character.

MR BLACKMORE:   No, that is in subsection (2) as well, which is the one your Honours ‑ ‑ ‑

GAUDRON J:   Section 110(2)?

MR BLACKMORE:   Yes, which is the section that responds, as it were, to subsection (1).  So clearly other evidence is admissible, in our submission, not just convictions.

GAUDRON J:   This is evidence of good character – 110 is evidence of good character, is it not?

MR BLACKMORE:   Yes, but subsection (2) says you can lead evidence, right at the last sentence:

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

So it is a responding section.  It is an equal and opposite responding section, and if you are entitled to lead evidence of good character generally, you must be entitled to respond to it generally.

GAUDRON J:   It is cross‑examination you have to deal with.

MR BLACKMORE:   Yes, cross‑examination.

GAUDRON J:   You did not call any evidence, you did not get leave to call evidence?

MR BLACKMORE:   We did not get to have any of it, ultimately, because she did not agree.  She denied it.  There was some other evidence but fundamentally this is the point that the matter was raised originally on, whether or not the Crown could rely upon this material, the Law Society, the forgery.  I am not sure that I can be of much more assistance.  In our submission, clearly under section 110(2), the Crown was entitled to lead, or attempt to lead, some evidence and cross‑examine the accused in relation to these matters.  It was then a matter of “with leave”, yes, with leave.  It is then a discretionary decision and we would say that his Honour appropriately considered all of the matters necessary in the exercise of his discretion.

KIRBY J:   The Crown might succeed ultimately, but could you deny, in the light of the argument that we have heard this morning, that this is not a matter of importance in the construction of this Act which applies outside New South Wales and which has visited our Court on a number of occasions now, and which is likely to do so in the future?

MR BLACKMORE:   No, of course not.  Character is an important issue and clearly the construction of these sections will ultimately be something that has to be considered.  The question is whether this is the appropriate vehicle.

GAUDRON J:   That always will be the question.  You can raise that in every case but, fundamentally, when you have a new Act like this which is not well understood in practice, it seems to me, it is better for these questions to be determined early in its life rather than later when heresies are built upon heresies, is it not?

MR BLACKMORE:   I cannot really argue to the contrary to any of the propositions.

KIRBY J:   Especially when you have very experienced counsel trying to haul you back to the common law all the time.

MR BLACKMORE:   And this Court itself has said in Papakosmas and in other decisions that you cannot just overlay the common law into the Act.

GAUDRON J:   No, that is right.

MR BLACKMORE:   The words in the Act, and that is why I draw ‑ ‑ ‑

GAUDRON J:   You have to look at the words of both sections and there seem to me to be some provisions in those sections that raise some questions.  Do you want to say anything about 104?

MR BLACKMORE:   Only that we submit that the evidence was tendered under 110, not 104.  So, no, we do not seek to make any submission other than that, at this stage anyway, in relation to 104.  I suppose the only submission I could make is that under 104 again leave is required.

GAUDRON J:   Do you accept that the matter has to be approached in this way at the end of the day?  What would have been the position if the applicant had not given evidence in‑chief herself as to the existence of the complaint and the nature of the complaint?  Do you accept that in the circumstances then developed, that is the way to approach this matter?

MR BLACKMORE:   Yes, that is fair.

KIRBY J:   That is on the basis that this is effectively a challenge to the judge’s ruling, I assume, to which ‑ ‑ ‑

MR BLACKMORE:   Yes.  It was a little bit unusual the way it developed in this case, but in fairness to the applicant, he probably had no choice but to make this application early on in the trial and I think it would be unfair of us to submit that somehow that miscarries his now present application.  But if you look at what the trial judge had in front of him at that stage, he had material, not just an allegation, but he had material from the Law Society, he had clearly documentary evidence which showed that the signatures on the documents were not the same.  So it was more than just a bare allegation in

this case.  I do not know that I can add much more than that in relation to that aspect of it.

GAUDRON J:   Yes, thank you, Mr Blackmore.

KIRBY J:   You have nothing to say, I assume, about the time default?

MR BLACKMORE:   No, your Honour.

GAUDRON J:   You do not raise any objection at all?

MR BLACKMORE:   I do not raise any objection to that, your Honour.

GAUDRON J:   Do you formally seek an extension of time, Mr Porter?

MR PORTER:   If your Honour pleases, yes.

GAUDRON J:   In that case there will be an extension of time and a grant of leave in this case.

KIRBY J:   Mr Porter, may I just ask what has happened to your client in the meantime?  Is there a stay on the orders?

MR PORTER:   She has served her term, your Honour.  Having regard to the time that has elapsed, her term of imprisonment – she was given home detention – that has been served long ago.  Her sentence has been served.

KIRBY J:   So this is, in a sense, to clear her name or to have the conviction set aside for the professional purposes.

MR PORTER:   To have the conviction set aside, yes, that is right.

KIRBY J:  Is that a matter that is relevant?  That was not raised by the Crown.  We are not engaged in an academic exercise?

MR PORTER:   No, it is not an academic exercise at all, your Honour.  There have been numerous cases where this happened.  In Saraswati’s Case, which was a leading case that your Honour Justice Gaudron sat on, in that case the sentence had been served.  There are quite a few cases where, by the time the matter reaches the High Court, the sentence has been served.

KIRBY J:   You do not raise any objection to this?

MR BLACKMORE:   No.  The provisions are important generally and therefore I think that ‑ ‑ ‑

KIRBY J:   I apologise for not raising that earlier.  I had a note to raise it, but I thought a stay might have been granted.  Stays are very rarely granted, unless Justice Callinan grants them.

GAUDRON J:   Yes, thank you.

AT 10.08 AM THE MATTER WAS CONCLUDED