KAMM, William v Regina

Ali v Regina [2005] HCA 8; (2005) 214 ALR 1; Nudd v Regina [2006] HCA 9; (2006) 225 ALR 161; CASES CITED : R v VN [2006] VSCA 111; Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Wakeley v The Queen [1990] HCA 23; (1990) 93 ALR 79.

PARTIES: William Kamm - Applicant The Crown - Respondent

COUNSEL: P Boulten SC - Appellant D Arnott SC - Crown

SOLICITORS: Salvatore Macedone, Miranda - Applicant Solicitor for Public Prosecutions - Crown

LOWER COURT DATE OF DECISION: 24 August 2007 (Sentence)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/00004049 DC 06/11/0741

GILES JA LATHAM J MATHEWS AJ

Wednesday, 10 December 2008 William KAMM v REGINA Judgment 1 GILES JA: This is an appeal against the appellant's conviction for a number of sexual offences alleged to have occurred in June-July 1994 and January 1995, all involving the same complainant. One offence was committing an act of indecency towards the complainant, then under the age of 16 years, in the circumstance of aggravation that she was under the appellant's authority (Crimes Act 1900, s 61O(1), since amended). The other offences were offences of having sexual intercourse with the complainant, then over the age of 10 years and under the age of 16 years, in the same circumstance of aggravation (Crimes Act, s 66C(2)). At the time the complainant was aged 14 or 15. 2 The appellant does not apply for leave to appeal against sentence. 3 The appellant was the leader of a religious community known as the Order of St Charbel. Members of the community lived in houses and caravans on a property near Nowra in New South Wales. The appellant was known as The Little Pebble. He claimed to communicate with and receive messages from the Virgin Mary. He prophesied the end of the world and a new era of paradise on earth for the community, and his teachings included that 12 queens would be chosen by the Virgin Mary to bear his children and 72 princesses would be chosen able to marry others but to bear his children if they wished. All would become the appellant's wives and the child-bearing would provide the foundation for repopulation in the new era. 4 The complainant's family moved to the community in 1991, when the complainant was aged 11 or 12. Her eldest sister B, to whom reference will later be made, had joined the community some months earlier. 5 The complainant remained a member of the community until 2002. It was not disputed that there came about a sexual relationship between her and the appellant, and in October 1999 she bore the appellant's child. On the Crown case, the sexual relationship began in 1994 when the complainant was aged 14 years and had been chosen as a queen. The appellant was then aged about 45 years. The appellant did not give evidence, but from the cross examination of Crown witnesses and evidence called in the defence case it was his position that the sexual relationship began after the complainant had attained the age of 16 years. 6 There were three grounds of appeal, each directed to miscarriage of the trial rather than inadequacy of the Crown case.

Ground 1: The trial miscarried because counsel for the appellant failed to take any step to answer serious allegations of impropriety made against him in evidence by an important prosecution witness, Pamela Ross . 7 Apart from evidence of the particular occasions of the act of indecency or the sexual intercourse the subject of the offences with which the appellant was charged, the complainant gave evidence of letters from the appellant and written replies through the appellant to questions addressed by her to Virgin Mary, in 1993 and the first half of 1994, suggesting and encouraging that she become a queen and have a physical relationship with the appellant. According to the complainant and other witnesses many of these documents had been destroyed, but some were available and were put before the jury. Some pages of a private diary kept by the complainant also remained and were put before the jury, and provided significant support for the complainant's evidence of a sexual relationship. 8 The complainant's evidence included that in 1998 the appellant told her and her mother to destroy letters received from the appellant, some in 1993 and 1994, explaining what being a queen meant and what it entailed for her (for example, she said that a letter stated "that I had to have sex with William in order to fulfil my mission to be a queen"). In cross-examination it was put to the complainant that this destruction had not occurred. 9 Late in the Crown case a former member of the community, Ms Pamela Ross, gave evidence that in the winter of 2003 she and a fellow member, Mrs Natalie Hepi, went to what was described as the appellant's shed on the property and went through black plastic bags "looking for letters from William and alleged messages from Our Lady to [the complainant] and anything that would link [the complainant] to William in an intimate way", which they burned. She said that while they were burning documents the appellant arrived and said, "I'm not here, I can't be involved in this process", and that he "just came to see if … you were successful in doing what I asked." 10 Consistently with the challenge to the complainant's evidence of destruction of documents, although different calendar times were involved, counsel for the appellant embarked on a challenge to this evidence. Part of the initial challenge was to contrast the witness' occupation as a parole officer in Canada, prior to her joining the community, with alleged criminality in burning evidence at the direction of a person under a criminal charge. The witness replied that at the time she believed that she was protecting the appellant "in a spiritual sense". It was squarely put to the witness that there was no destruction of documents. 11 Shortly thereafter counsel began what appears to have been intended as cross-examination to suggest that the witness' evidence should not be accepted because she had earlier offered to assist the appellant's defence, with the benefit of her Canadian experience, notwithstanding that according to her evidence she had participated in the destruction of potentially incriminating documents. Something like this had been foreshadowed in the opening question in cross-examination suggesting that the witness was "a clever deceiver". 12 There came the evidence - "Q. And you were prepared to enter the witness box on Kamm's behalf weren't you to testify on his behalf? A. That's true. Q. At a time before or after you destroyed the documents? A. After. Q. And you were pretending weren't you to his legal representatives then that you were a person of good repute and character, able to give such evidence? A. No I wasn't pretending at all. Q. You would have gone into the witness box, not having told his legal representatives about the destruction of the documents --- A. Is that entirely true. Q. - to give evidence on his behalf, correct? A. Is that entirely true. Q. You tell us? A. No. Q. You tell us then, what's the truth of it? A. That his legal representatives knew. Q. Who are you referring to specifically? A. You Mr Stanton." 13 In cross-examination continuing over a further four pages, counsel questioned the witness about failure earlier to claim that he knew about the destruction of documents. Eventually he put to her that she knew that if the appellant's legal representatives knew that documents had been destroyed, they had become involved in a possible criminal offence. The witness did not agree. In the course of this questioning the witness gave answers to the effect that the appellant's legal representatives knew about the destruction of documents because they knew "all the things that have gone on in Mr Kamm's case" or "everything that was going on". 14 I do not reproduce more of the cross-examination, which must be read as a whole. Anticipating what is to come, on reading it as a whole it is in my view clear that the witness and counsel were at cross purposes. After she left the community the witness had given a statement to the police, which had been served on the appellant's legal representatives, in which she said there had been the destruction of documents. Counsel had in mind dissembling on the part of the witness at the time she was supportive of the appellant, but the witness had in mind the time when to her belief the account of the destruction of the documents in her statement was known to the appellant's legal representatives. The first "Is that entirely true" was the witness' response to a perceived assertion that the appellant's legal representatives were unaware that she said that there had been the destruction of documents, something which the witness did not accept because her understanding that the appellant's legal representatives knew all the things that had gone on in the appellant's case meant that they knew that she had given that account. 15 There came a point when trial judge said that "we are just getting into an argument here", and there was discussion in the absence of the jury and the witness. It is apparent that the appellant's counsel considered that the witness' evidence suggested that he had acted unethically. His explanation again revealed temporal confusion, namely that "[a] positive defence would continue and I would either lead evidence knowing it to be false that countered this proposition or ignored it in circumstances where the claimed ignorance of the matter would be a fraud." Counsel was under a misapprehension, because the witness was not asserting knowledge of destruction of documents on his part outside the account in her statement. Consistently with the correct understanding that she was speaking of his knowledge after she had made her statement to the police, he could act upon instructions from the appellant that there had not been the destruction of documents. 16 Eventually the trial was adjourned, counsel correctly saying that he should not act in haste but should "look at the transcript". He said that he would take the transcript to a member of the Ethics Committee and obtain a ruling. 17 On the next morning counsel for the appellant said no more than, "I am satisfied that my position is resolved and I am content to move on". He asked one further question of the witness, simply putting to her that there had not been the destruction of documents. 18 The question of destruction of documents was taken up in the defence case, through evidence of the complainant's mother denying that in company with the complainant she had destroyed letters received from the appellant or from the Virgin Mary, or diary pages or other documents. I refer again to this under ground 2. 19 Destruction of documents was touched on fairly lightly in addresses. The Crown Prosecutor said no more than that there was evidence from Ms Ross of destruction of documents in 2002 (sic) and that the complainant's mother was involved in destruction of documents in 1998. Counsel for the appellant suggested that it was "laughable" that the complainant's mother had destroyed documents when other evidence showed she had sent documents of the complainant to her at her request after she had left the community, and as to Ms Ross followed the theme of a clever deceiver - "Pamela Ross - do you really accept Pamela Ross's evidence, a woman driven, you might think, by revenge, by spite, vindictive - has sat on critical information for some years, a woman - the significance of her inaction, her deception in withholding that material from the authorities, you might think in her mind, was a little more significant than it might be in the ordinary individual because of her experience in Corrective Services in Canada and her work as a social worker in that country. Destroyed documents, read them, digested their content, and then destroyed them on behalf of Mr Kamm, to protect him, who just happens to come forward now because as a one-time member of the community, what? She wants to see justice done now that previously she was prepared to pervert, by the disclosure - I withdraw that - by the concealment of her actions, if she did it, she was at the one time in her life prepared to break the law." 20 In the summing-up the trial judge referred to "the diaries and letters destruction evidence" as an illustration of what was not an element of the offences which the Crown had to prove, and later very briefly adverted to what had been said in the respective addresses. 21 The appellant submitted that the passage in the cross-examination which I have set out "cast an appalling shadow over the appellant's own barrister", and that things got worse to the point of being "irretrievably disastrous" with the reference to involvement in a possible criminal offence. He submitted that the witness pointedly accused counsel of complicity in an endeavour by the appellant to mislead the court about the destruction of documents, that counsel's position had become compromised, and that there should have been an application to discharge the jury or, at the least, an application for directions entirely to disregard what the witness had said. Indeed, it was submitted, the suggestion that the appellant's counsel was complicit in covering up destruction of documents was itself evidence of consciousness of guilt on the appellant's part which should have been rebutted by evidence from counsel himself. Yet the trial continued without any further reference to counsel's position, and the witness' allegations levelled at counsel were left unanswered in a manner which diminished counsel's standing in the eyes of the jury and caused substantial unfair prejudice to the appellant. 22 There is no doubt that counsel initially saw the evolution of the cross-examination as imputing misconduct on his part and, although it seems to have receded a little, on the part of his instructing solicitors. There was, with respect, a rather emotional reaction, rather than consideration of what the witness was really saying. As I have said, I consider that counsel and the witness were at cross-purposes, although counsel did not so see it at the time. 23 Cross-purposes occur in the course of trials, and as in ordinary life juries can see when it occurs. In my opinion, the jury is unlikely to have taken from what took place possible criminality on the part of the legal representatives or that their conduct told against the appellant. That appears to have been counsel's conclusion, after reading the transcript and with the consideration which the adjournment allowed (and perhaps taking peer advice), since counsel let the matter rest. All concerned let it rest; destruction of documents was not prominent in the addresses or the summing-up, and there was no reference to the contretemps between counsel and the witness. 24 The appellant's submissions came down to the submission that counsel's conduct of the trial, in not applying for discharge of the jury or taking some other course with a view to negating possible prejudice to the appellant, gave rise to a miscarriage of justice. 25 Criminal trials are adversary proceedings, in which ordinarily the parties are held to the way in which their counsel have presented the party's case, and counsel has a wide discretion in the conduct of the case. As Gleeson CJ said in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [16]-[17], a rational tactical decision by counsel, even if later regretted, does not make a trial unfair or produce a miscarriage of justice. In the same case Hayne J, with whom Gummow J agreed, explained at [107]-[112] (in the context of failure to call character evidence) that the question was whether there could be a reasonable explanation for counsel taking the course he or she took. See also Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1 and Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161; the principles are summarised by Hunt AJA, with the agreement of Simpson and Rothman JJ in Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576 at [19]-[23]. 26 As I have said, it appears that counsel decided, with the benefit of the transcript and further consideration, to let the matter rest. Without entering into counsel's thought processes, there could readily be a reasonable explanation for his not applying for a discharge of the jury or seeking otherwise to deal with what had passed between himself and the witness. Counsel giving evidence would of course mean replacement representation, with a considerable down-side for the appellant. Specific directions could high-light the evidence of destruction of documents to the appellant's disadvantage. It can not be assumed that discharge of the jury, with a new trial then held, would be to the appellant's advantage. There had been a misunderstanding, on a less emotional appraisal not truly bringing the suggestion of impropriety in the conduct of the appellant's case by his legal representatives or likelihood of prejudice to the appellant. For all this Court knows, he had discussed what might be done with the appellant and received instructions to proceed as he did - there was no evidence before the Court seeking to explain counsel's decision. 27 Counsel maintained the appellant's position that there had not been destruction of documents, which while a relevant matter was not one central to the Crown case, and that matter was given in addresses such attention as it was thought it deserved without reference to any suggestion o impropriety in the conduct of the legal representatives. In the words of Gleeson CJ in TKWJ v Regina at [8], counsel made "the kind of tactical decision routinely made by trial counsel, by which their clients are bound", being "the kind of decision that a Court of Criminal Appeal would ordinarily have neither the duty nor the capacity to go behind". 28 I would not accept this ground of appeal.

Ground 2: The trial miscarried because the Crown Prosecutor asked questions in cross-examination of [the complainant's mother] that were either irrelevant or lacked substantive probative value and which were, in any event, offensive such that they caused unfair prejudice to the appellant. 29 The complainant's evidence in chief included that in 1993 she spoke to her mother about what she should do, and her mother told her that God knew best and just to do what God asked her to do. The complainant said that shortly after the occasion of the first sexual encounter in June 1994, when she was aged 14, she again spoke to her mother, who told her that "she should have sex with William Kamm because its God's will", and that on the next occasion in July 1994 she was picked up by the appellant from her mother's house and her mother consented to her going to the hotel alone with the appellant. She said also as to the sexual encounters in January 1995, on her evidence at the appellant's house, that her mother knew of them and said "that I should just do it because it's God's will". 30 The complainant's mother was called in the defence case. She was still a member of the community. She said that the complainant was a princess in 1994, but that her union with the appellant was "[i]n a spiritual way that was all", and that the complainant did not become a queen (which meant "a physical way, meaning sexual intercourse, if the queen wished") until much later. She denied that when the complainant was under the age of 16 she encouraged her to have a sexual relationship with the appellant or a physical intimate relationship falling short of sexual intercourse, or told the complainant that she must sleep with the appellant; indeed, she said that after the complainant was 16 she did not encourage the complainant to have a sexual relationship with the appellant. As I have noted, she also denied that in company with the complainant she had destroyed letters received from the appellant, or communications from the Virgin Mary or diary pages or other documents. 31 Whether the complainant's mother encouraged a sexual relationship with the appellant in 1993-1995 was relevant to whether there was the sexual relationship. It had further relevance, because the complaint was cross-examined at some length about delay in disclosing the sexual conduct, it being put to her that she and her subsequent de facto husband fabricated the allegations of sexual conduct in order to extort money from the appellant. The complainant said that despite early misgivings she believed in the appellant and his teachings and came to want to have his children, and her mother's encouragement through telling her to submit to God's will and condoning the arrangements for her to be with the appellant was part of the explanation for the delay. 32 The appellant accepted that the Crown Prosecutor was entitled to cross-examine the complainant's mother "vigorously" in relation to her credibility. He submitted, however, that in two respects the cross-examination lacked relevance, or if relevant did not have substantial probative value as required by s 103(1) of the Evidence Act 1995, and for other reasons should not have been permitted. 33 The first respect was in the Crown Prosecutor's opening questions - "Q. Mrs [name of witness] when you entered the witness box you took an oath to tell the truth didn't you? A. Yeah. Q. I noticed when you took hold of the bible you held it far away from your body arm outstretched, does that have any particular significance in your religion? A. No. Q. None at all? A. No." 34 The appellant submitted that this was irrelevant and offensive, with no basis other than a stereotype of how the bible should be held and suggestive that the bible was being held away from the witness so that she could lie on oath. He submitted that it should have been disallowed because irrelevant, or in conformity with the mandatory operation of s 275A of the Criminal Procedure Act 1986. 35 No objection was taken by the appellant's counsel at the time. 36 I do not agree that the cross-examination was impermissible in this respect. We have only the question's description of the manner in which the witness held the bible, but if it was an unusual manner it was open to the Crown Prosecutor, in a case in which religious beliefs played a relevant and prominent part, to make the enquiry, and an answer in the affirmative may have led on - "[s]ome of the most effective cross-examinations have begun by securing a witness' assent to a proposition of seeming irrelevance" (Wakeley v The Queen [1990] HCA 23; (1990) 93 ALR 79 at 86). 37 The Crown referred to R v VN [2006] VSCA 111, in which the witness was directly cross-examined to suggest that he took an affirmation rather than an oath because he was telling lies, rather than (as he said) because a Baptist never swore on the bible. A complaint of miscarriage of justice which included that this was "unfair" was rejected, and it was said that the statutory availability of an affirmation did not preclude cross-examination to suggest that the witness was not giving truthful evidence (at [104]-[106]). In the present case the cross-examination did not get to that point, but the opening enquiry was open to the Crown Prosecutor. 38 The enquiry was not made offensively, nor as it was left was it suggestive of lying on oath, and when the enquiry was answered in the negative the cross-examiner moved on. The transcript shows that counsel for the appellant was diligent in taking objections, and absence of objection indicates that this questioning did not strike him as offensive. 39 The second respect was the continuation of the cross-examination - "Q. You knew .that when you and your family migrated from Germany to Australia that [the complainant's eldest sister B] was going to be Mr Kamm's wife is that correct? A. Yeah. Q. You knew Mr Kamm was already married didn't you? A. Yeah he --- Q. The bible has something to say about that doesn't it? A. He was -- STANTON: Well I object to that your Honour -- HIS HONOUR: Hold on, don't answer that please. Mr Stanton? STANTON: It's a misleading question your Honour, the bible has a lot to say about marriage and various Christians your Honour, there's --- HIS HONOUR: Well hold on let's - no Mr Stanton I don't need a religious lesson, I just want to know what's wrong with the Crown's question. STANTON: It's meaningless is the first issue. HIS HONOUR: Well I can understand it. Go on. CROWN PROSECUTOR Q. Your daughter [B] entered into a sexual relationship with Mr Kamm when he was already married didn't she? A. He was separated at this time going for a divorce. Q. He was still married to her though wasn't he? A. Yeah. Q. I'll be more specific. The bible has something to say about adultery doesn't it? A. Yeah. Q. Didn't you think that Mr Kamm was committing adultery with your daughter [B]? A. No, no." 40 The appellant submitted that the witness' approval of B entering into a relationship with a married but separated man was irrelevant, or if relevant lacked substantial probative value and should have been disallowed pursuant to s 103(1) of the Evidence Act or should not have been admitted pursuant to s 137 (probative value outweighed by danger of unfair prejudice). The reliance on s 137 was not greatly elaborated. It was suggested that the witness' religious belief whereby there could appropriately be a sexual relationship between B and the appellant did not bear on her credibility, and that there was prejudice in an unfair attack on her credibility because of her religious belief. 41 The submissions did not recognise or meet the point of these questions. The Crown Prosecutor went on to draw attention to a letter from the appellant to the complainant's mother in which he said that "the law of God is suspended for me and my princesses into regard to formal marriage as he has done in regards to [the appellant's former wife] and [B]", and elicited from the witness her beliefs that the law of God is suspended for the appellant "because he is God and he can do what he wants" and that the appellant was above the law of man as well "because he makes the law". The ensuing cross-examination brought out the witness' beliefs that the appellant "through his mystical seed will re-populate the earth", that in the new nation to be built the witness' daughters were to be queens, that being a queen involved sexual intercourse in order to generate a new population, and eventually that the witness believed that "it was God's will that the appellant have sex with [the complainant]". 42 The witness did not agree that she knew that the appellant was having sex with the complainant, at least prior to the complainant being aged 18 years, or that she ever told the complainant that it was God's will to have sex with the appellant; she said that she told the complainant only that "Heaven prefers this but it leaves you free". It was suggested to the witness that in a statement given to the police she had said that the complainant was 16 when she was having sex with the appellant, to which she responded to the effect that she was confused at the time. There was further cross-examination to which reference need not be made, in the course of which it was put to the witness that her beliefs were so strong that she was prepared to lie in her evidence (with which she disagreed) and - "Q. Your truth is William Kamm's truth, isn't it? A. No, it's God's truth. Q. And God and Mr Kamm are one? A. As a prophet, yes. Q. You're prepared to lie for him? A. No." 43 The objection taken by counsel at the time was not obviously on the ground of relevance or lack of probative value. Seen in the cross-examination as a whole, the questions concerning the witness' view of the sexual relationship between B and the appellant were not gratuitous disparagement of the witness' religious beliefs, but were an introduction to establishing the witness' adherence to the appellant's status as God's prophet standing above the law of man, with whom it was God's will that the complainant should have a sexual relationship in order to generate the new population. This commitment to the appellant and his teachings went strongly to the witness' credibility in her denial of the complainant's evidence of her mother's responses and attitude in 1993-1995, and also to the witness' credibility in denying any involvement in destruction of documents. 44 I would not uphold this ground of appeal.

Ground 3: The trial miscarried because the Crown Prosecutor asked questions in cross-examination of Candice Hepi that were either irrelevant or which lacked substantive [sic] probative value and which were, in any event, offensive and caused unfair prejudice to the appellant. 45 On the complainant's evidence, the appellant took her to the Sovereign Inn Hotel at Fig Tree on the occasions in June-July 1994, and the act of indecency and the first acts of sexual intercourse took place at that hotel. The then manager and another member of the staff at the hotel gave evidence that the appellant regularly stayed at the hotel from at least 1994. From the cross-examination, on the appellant's case he did not stay there prior to 1996. 46 The hotel records for 1994 were no longer available, but the recollection of the staff members was that the appellant usually paid by credit card. The Crown case did not include any records from credit card companies showing payments by the appellant by credit card, or any evidence that there were no longer such records; it was silent on that subject. 47 Ms Candace Hepi was called in the appellant's case to give evidence of enquiries she made of credit card companies resulting in letters identifying a considerable number of credit cards in the appellant's name and credit card statements for three credit cards for 1994. The letters and statements were tendered and admitted. The statements did not show payment to the hotel. Ms Hepi had been and at the time of the trial was still a member of the community. Mrs Natalie Hepi earlier mentioned is her mother. 48 Early in her evidence in chief Mrs Hepi was asked - "Q. Do you hold any particular position within that community? A. I assist William Kamm in his business in his office. Q. Apart from that do you hold any religious positions in the community? A. No. Q. Were you ever one of Mr Kamm's queens? A. I don't understand the question. Q. I'll come back to that if needs be. … " 49 The witness said that she had been "asked to undertake a certain functional role in respect of Mr Kamm's credit cards over a period of time", that she had had access to the appellant's records, and that she had "provided as best [she could] work it out, find them, all of the records in relation to credit cards that were at the premises". She then gave evidence of the enquiries she made of, and the documents received from, the credit card companies, and to some extent of other information she had been told orally by the credit card companies. 50 The cross-examination began - "Q. Ms Hepi, are you trying to hide something from this court? A. No. Q. You've told us that you were Mr Kamm's bookkeeper, is that correct? A. Not - I didn't say bookkeeper, I just assisted him with his business. Q. You were more than just an assistant to him in his business weren't you? A. Can you specify please. Q. Well you were more than just an assistant to him in his business weren't you? A. Can you please specify what you mean by that? HIS HONOUR: Q. The Crown asks whether you had any other role in the community apart from simply assisting Mr Kamm? A. I used to baby-sit his children. CROWN PROSECUTOR Q. You're the mother of his child aren't you? A. No. Q. You're not the mother of his child? A. No. Q. You are his mystical spouse, correct? A. No. Q. No? A. No." 51 The witness was asked to look at a letter dated 10 November 1997 in the appellant's handwriting. Objection was taken, there was argument, and the trial judge ruled that the line of cross-examination should be allowed. 52 When the cross-examination continued the witness' attention was drawn to the reference in the letter to her as Queen Candice. This brought her agreement that she occupied the position as queen and that she was the appellant's mystical spouse, that it was not true that she was simply a business assistant, and that she had lived with the appellant for a period. It was put to her that she was "prepared to lie for him", with which she disagreed. 53 The appellant submitted that the trial judge erred in ruling that the cross-examination in these respects had substantial probative value, and as well (although the objection taken was not on this basis) that the questioning should not have been permitted pursuant to s 137 of the Evidence Act. He submitted that the Crown could have had no real expectation that there were credit card records showing payment to the hotel in 1994 which the witness had not disclosed, and that there was unfair prejudice to the appellant in doing no more than create "a very dark cloud of suspicion" which well outweighed the probative value of the questions. 54 The appellant's submissions on appeal accepted that Ms Hepi had not been able to account for all the credit cards held by the appellant at the relevant time, and that she "was not able to comprehensively disprove that the appellant used credit cards at the relevant hotel at the relevant time". However, that was not particularly clear at the time. The evidence in chief left obscure the extent to which all credit cards in the name of the appellant in 1994 and following were within the enquiries made by Ms Hepi, and there was at least one positive assertion in her evidence that, from her search of the records, the appellant had and operated only one American Express card in 1994; further, the whole exercise was dependent on Ms Hepi's evidence that the records underlying the enquires she made were the entirety of the records in relation to credit cards at the premises. There was room for questioning the completeness of the disclosure made by Ms Hepi of all credit card records found on search. 55 When the appellant's counsel objected to the witness being taken to the letter of 10 November 1997 the trial judge observed that he had to be satisfied "that this has substantial probative value". In the ensuing discussion in the absence of the jury and the witness, the Crown Prosecutor said that he wished to ask the witness if there were other documents available to her that she had not produced. After hearing submissions, the trial judge delivered a judgment in which he said that the Crown was entitled to cross-examine the witness in order to suggest "bias", such as to make it more likely that the absence of records of credit card payments in 1994 was because records had not been produced and less likely that the explanation was that payments had not been made. His Honour expressed his satisfaction "in terms of s 103" that the cross-examination "in relation to suggestions of the witness' bias, has substantial probative value". 56 The references to bias could conjure up s 106(a) of the Evidence Act, which is concerned with evidence adduced otherwise than from the witness; from the transcript of the argument, the Crown Prosecutor referred to s 106(a) "if I'm required to tender this document [the letter of 10 November 1997]". However, the trial judge expressly ruled under s 103, and appears to have had in mind knowingly or recklessly making a false representation in s 103(2)(a). The language does not mean conceptual error. 57 The Crown Prosecutor's intention was carried out. The following cross-examination included putting to the witness that "if you saw records back at Cambewarra that had anything in them relating to the Figtree Motel [sic] you were not going to bring them to court were you". The witness answered, "yes", presumably meaning that she was going to bring them to court. In my opinion, the trial judge's ruling under s 103(1) was correct. Assuming that the cross-examination was adduction of evidence by the prosecutor I can see no necessity for his Honour to have refused to admit the evidence pursuant to s 137 had it been relied on. Questioning the completeness of the disclosure made by Ms Hepi was legitimate and met the test of substantial probative value, and there was no outweighing danger of unfairness to the appellant; it was not a case of no more than a dark cloud of suspicion, nor (and the appellant did not so submit) given the other evidence would the jury be likely unfairly to think less of the appellant simply through it being shown that Ms Hepi was one of the queens and that she had lived with him for a period. 58 I would not uphold this ground of appeal.

The result 59 I propose that the appeal be dismissed. 60 LATHAM J: I agree with Giles JA. 61 MATHEWS AJ: I agree with Giles JA. **********

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