Evidence Act 1906 (WA) s 21

Brown v Petranker (1991) 22 NSWLR 717

R v Miletic [1997] 1 VR 593

Re Ratten [1974] VicRp 26; [1974] VR 201

Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769

T v The Queen [2000] WASCA 153

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J, with which I am generally in agreement. I desire only to make some brief observations.

2 Section 21 of the Evidence Act 1906 relevantly provides:

"Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it."

In this section, the word "relative" means "relevant" - see R v Hart (1957) Cr App R 47, R v Trotter (1977) Tas SR 133 (N C 7) and R v Funderburk [1990] 1 WLR 587.

3 The complainant's allegations, as Dr J Payne recorded them, were as follows:

"[The complainant] said that about 22 hours earlier she had been physically and sexually assaulted. She stated that she had been pulled from a car, so that her head hit concrete and for a while she had lost consciousness, her face had been punched, her hair pulled, her mouth and nose covered so she could not breathe, her throat held and her alleged assailant had tried to kiss her breasts."

Only the final allegation, that of the appellant having tried to kiss her breasts, is material for the present purposes. Each of the other allegations, as recorded by Dr Payne, was repeated in the complainant's examination-in-chief, that is, that she was pulled from the car, that she was punched in the face, that she hit the left side of her head on concrete, that she was dizzy, that she couldn't breathe because the appellant's hand was over her mouth and that he grabbed her throat. She made no reference in her examination-in-chief to the appellant having tried to kiss her breasts, but her evidence was that the appellant "ripped" her out of the car by her shirt, that the straps of her brassiere were over her arms and that her breasts were hanging out of the cups. The evidence of the attendant at Hungry Jack's was that, when she saw the complainant, she had tears in her eyes, her hair was all messed up, her shirt was all stretched and her cheeks were all puffy and red. Constable T J Kinghorn, who had been called to

Hungry Jack's premises in Cannington, described the complainant as being very distressed and agitated, and that her clothing was "ruffled, dishevelled".

4 Counsel for the appellant, in his cross-examination, took the complainant through her statement to the police, which made no reference to his attempting to kiss her breasts. She denied saying that the appellant had tried to kiss her breasts and she specifically denied that she had told Dr Payne or the police that he had tried to do so. She did, however, complain in her examination-in-chief that the appellant had attempted to kiss her, his tongue brushing her lips. She was not cross-examined on that evidence. Dr Payne had not made a record of that complaint.

5 Speaking for the Court of Criminal Appeal, Devlin J said in R v Hart (supra), at 50:

"The provision under which that evidence was sought to be made admissible is now contained in section 4 of the Criminal Law Procedure Act, 1865, which re-enacted the Common Law Procedure Act, 1854. Before that it had probably been the common law that, quite apart from any statute, questions were admissible - certainly in the ordinary common law courts - whereby if a witness gave evidence of a fact that was relevant to the issue (and that is important, because if the question merely goes to credit, he cannot be contradicted) it could be put to him that on some earlier occasion he had made a contrary statement to somebody else and, if he denied it, that somebody else could be called. What was probably the common law was certainly made statutory by the Common Law Procedure Act, 1854, and then by Denman's Act, the Criminal Procedure Act, 1865."

6 In my opinion, this was a matter merely going to credit. It was not such as to fairly influence the belief of the jury as to any matter in dispute.

8 PIDGEON J: I agree with the reasons of Kennedy J and with the further observations of Murray J.

9 MURRAY J: On 19 - 21 January 2000 the appellant was tried before Deane DCJ and a jury upon an indictment charging four offences, all allegedly committed on 18 January 1998 upon the same complainant. The appellant was acquitted of the charge that he indecently dealt with the complainant, a child between the ages of 13 and 16 years. At the time she

was 15. The appellant was, however, convicted of three offences, one of unlawfully detaining the complainant, one of assaulting her so as to cause her bodily harm and the third of assaulting her with intent to facilitate the commission of a crime, the alleged intention being to commit some form of sexual offence against the complainant.

10 The Crown case was that on the day in question the complainant had gone with her guardian, a woman with whom she lived, to visit a friend of her guardian at the friend's home where she lived with her defacto husband and children. The appellant, a man of mature age, also came to the house during the day and remained there.

11 At about 8.00 pm the appellant asked the complainant to come for a drive with him in his car while he went to get a compact disc player. The appellant commenced to drive his car in a most erratic and dangerous manner. She shouted at him to be taken home, but he ignored her request. At the Cannington greyhound track he stopped the car and, although she kept asking to be taken back to her guardian, he refused to allow her to leave the vehicle. This behaviour constituted the unlawful detention offence.

12 The appellant alighted from the vehicle and commenced to behave in a most irrational fashion, banging his head against a wire fence. By this stage the complainant was thoroughly frightened and she continued to ask to be taken back to her guardian. The appellant commenced to talk to her in a sexually suggestive manner and he came to the open car window adjacent to where she was seated and, according to her evidence, he attempted to kiss her on the lips with his tongue out, brushing against her lips as she pulled back and turned her head. This was said to be the offence of indecent dealing of which the appellant was acquitted.

13 The appellant then pulled the complainant from the car and slapped her face with such force that she fell to the ground, suffering tenderness across the cheeks, a swelling to the right side of the head, and some bruising. This part of the incident constituted the offence of assault occasioning bodily harm. Evidence of the injuries and that they constituted bodily harm within the meaning of the law was given, not only by the complainant, but also by a medical practitioner consulted on the following day, a Dr Payne. For her convenience Dr Payne was in fact called before the complainant, who was the second witness called for the Crown.

14 The appellant then pulled the complainant to her feet and again knocked her to the ground. She was dizzy and disoriented. They struggled on the ground, the appellant trying to position the complainant on her back. Her shirt was torn open and her brassiere disarranged. The appellant was saying to her, "You want it as much as I do, you know you do." He also said he would not hurt her. She understood that he wanted to have sexual intercourse with her. During the course of the struggle the complainant managed to bite the appellant on the hand. He let her go and she was able to get to her feet and attempted to escape.

15 The appellant chased and caught her, there was a further brief struggle, she managed to get away again and ran to a nearby Hungry Jack's outlet where, in a distressed state with her clothing disarranged and breasts exposed, she spoke to a 17-year-old customer service attendant from Hungry Jack's and said that someone had tried to rape her. The police were called from the restaurant and they soon arrived. The appellant had stayed in the area, but he was not spoken to there. He was aggressive, agitated and abusive. He offered to fight one of the constables.

16 Five days later, on 23 January 1998, a detective from Bentley Police Station went to the appellant's house and left a message that he wished to speak to him. Later that afternoon the appellant and a friend came to the Police Station. The appellant was interviewed. A video record was made of the interview, but no evidence of what was said was led. The appellant was then charged.

17 The appellant gave evidence in his own defence. He agreed he was in the motor vehicle with the complainant, but he gave a quite different account of the journey and the events which occurred. He said that at one point, because he had difficulty with an automatic teller machine, he gave the complainant his key card and personal identification number. Then he misplaced the card. When he asked the complainant about it, she became more and more upset. When he stopped near the Hungry Jack's outlet, she was in such a state that she left the car and ran towards Hungry Jack's. He followed her to see if he could take her back home. At one stage while he was there he saw the police speaking to the complainant. He approached them and the police spoke briefly to him, but nothing further occurred until some days later he was asked to go to the Police Station, which he did, telling his story in answer to the questions of the police during the video recorded interview. No incident like that of which she had spoken in evidence occurred.

18 The appeal against the convictions is brought upon the following grounds:

"1. The learned trial judge erred in not allowing the witness, Doctor Joanne Payne to be re-called for further cross-examination by defence counsel to refute the complainant's allegation that she had not made a complaint to the doctor that the appellant had tried to kiss her breasts.

2. In the alternative to Ground 1, the learned trial judge erred in refusing to permit the defence counsel to call Doctor Joanne Payne to testify on behalf of the Appellant.

PARTICULARS

(a) Doctor Payne had given evidence for the Crown and had been called to give evidence before the complainant for reasons of convenience;

(b) there were material inconsistencies between the evidence given by the complainant and the account of events related to Doctor Payne, which would have been relevant to the substance of the complainant's allegations and her credibility;

(c) the learned trial judge prevented defence counsel from calling the doctor and thereby putting before the jury the inconsistencies."

19 The Crown case certainly depended upon the jury's acceptance of the complainant as a truthful and accurate witness. This, it appears, they did despite the acquittal upon the charge of indecent dealing with the child. There was, of course, evidence to support the complainant. It was primarily to be found in the evidence given by Dr Payne of the injuries which she observed on the following day and in the complainant's state and distressed condition at the time when she made the complaint immediately after the alleged incident. Her credibility was assisted by the fact of the complaint. However, if the jury did not reject the appellant as a truthful witness and accept as substantially true the evidence of the complainant, they could not convict of any of the three offences of which they returned guilty verdicts.

20 I have mentioned that Dr Payne gave her evidence as the first Crown witness. The evidence led from her was of her examination of the complainant and of her findings of physical injury, together with her opinion relevant to the question whether such injuries would constitute bodily harm as that term is defined in the Criminal Code, s 1(1). The doctor had made a report which was available to counsel and the court, but it was not tendered in evidence and no evidence was led from her by prosecution or defence as to the statements made to Dr Payne by the complainant as to what had happened to her. No such evidence would have been admissible if sought to be led by either party. The report said that the complainant:

"...stated that she had been pulled from a car, so that her head hit concrete and for a while she had lost consciousness, her faced had been punched, her hair pulled, her mouth and nose covered so she could not breathe, her throat held and her alleged assailant had tried to kiss her breasts."

21 The complainant's evidence-in-chief dealt with all those matters, except the suggestion that the appellant had tried to kiss her breasts which, it will be recalled, had become at least partially exposed, on the complainant's evidence, during the course of the struggle. The complainant had made no such statement when she subsequently signed a statement given to the police on 22 January 1998.

22 When the complainant was cross-examined for the purposes of the trial she was questioned about what she had said to the doctor. The following exchange occurred:

"Did you say that Mr Narkle had tried to kiss your breasts?---No, I did not.

You didn't say that to Dr Payne?---No, I did not.

Or to the police?---No, I did not. I am not a liar.

So if a note had been made of that, that was just incorrect. Someone got it wrong?---I'm sorry?

If a note had been made of that, then whoever made that note got it wrong?---Of what?

Him trying to kiss your breasts?---I never said nothing about him trying to kiss my breasts."

It will be noticed that counsel put a question suggesting that the witness might have told the police as well as the doctor that the appellant had tried to kiss her breasts. Not surprisingly, therefore, in re-examination prosecuting counsel asked:

"Is there anywhere in your statement any reference to the fact that Mr Narkle attempted to kiss your breasts?---No."

Counsel went on to establish that the statement had been given on 22 January 1998.

23 Shortly after the complainant's evidence concluded, defence counsel applied for leave to have the doctor recalled for further cross-examination. A number of matters were raised, but the only matter which requires attention in the context of the appeal is that counsel wished to lead evidence from the doctor that the complainant had indeed made the statement that the appellant attempted to kiss her breasts. If her Honour would not permit that, counsel indicated that he proposed to call the doctor as part of the defence case. Her Honour said that she would not prevent that, but she ruled that the question proposed to be put to the doctor about the statement said to have been made by the complainant could not be put. The issue on the appeal is the correctness of that ruling, not the mechanical process by which leave to recall the doctor might be put into effect.

24 As to that, it will generally speaking be appropriate to allow the witness to be recalled for further cross-examination, particularly when, as in this case, the witness had not been excused from further attendance after giving evidence and we were told that Dr Payne was, or could soon have been, available to give more evidence: Fernando v The Queen [2000] WASCA 289; 11 October 2000 at par 48 and par 49. In Cheney v The Queen [1991] FCA 37; (1991) 99 ALR 360 at 383, von Doussa J, with whom Jenkinson and Miles JJ agreed, suggested that the desirable procedure in a case where a witness had denied making a prior inconsistent statement would often be to stand the witness down, call a witness to prove the making of the statement, and then recall the witness originally giving evidence for further cross-examination and re-examination. But again, the desirability of such a procedure need not be canvassed for the purpose of these reasons.

25 It may also be that for the defence to call a witness who has given evidence as part of the Crown case would require the leave of the trial Judge, such leave to be granted only in a case where the interests of justice generally appear to require that course to be taken. The ordinary rule is certainly that when a witness is called, all that is material should be put to the witness at that time unless the interests of justice in the particular circumstances of the case require a different course to be followed. Certainly it appears to be the practice to require leave for a Crown witness to be called by the defence in the UK: Archbold: Criminal Pleading, Evidence and Practice, 2000, par 8 - 253; but again this case was not about any such procedural issue, but about the question whether, if recalled, the doctor could be asked about the statement allegedly made to her by the complainant.

26 As to that question, it is to be borne in mind, as was conceded by counsel for the appellant, that to prove the making of the statement by the complainant was only direct evidence of that fact and it was sought to be proved as a prior inconsistent statement relevant to the jury's assessment of the complainant's credibility as a witness. It was not sought to be adduced to prove, and it could not prove, that the appellant had attempted to kiss the complainant's breasts. As to that fact it was hearsay and in any event the appellant was not charged with any indecent dealing or indecent assault related to any such act.

27 The question then was whether, the making of the statement having been put to and denied by the complainant, it related to what is often described as an issue collateral to the issues of fact arising in the case, in respect of which the rule is that the party putting the question and eliciting the answer would be bound by that answer in the sense that evidence to rebut its truth could not be called.

28 Certainly the question and answer would relate to a collateral issue if one was to apply the test in the leading case of Attorney General v Hitchcock [1847] EngR 616; (1847) 1 Exch 91; 154 ER 38 (Ex). In that case Pollock CB said at 99:

"The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence - if it have such a connection with the issues, that you would be allowed to give it in evidence - then it is a matter on which you may contradict him."

Patently, whether the statement in question was made to Dr Payne was not a matter which, irrespective of other considerations, could have been led by the defence as part of its case, the matter going to the complainant's credibility only. There is no question that a matter which goes merely to credit raises a collateral issue.

29 Some later cases query whether the test propounded in AG v Hitchcock can be applied in all cases, but the exclusionary principle to which the rule itself gives expression remains in full force and effect, and in my opinion is as important now as it ever was, particularly in cases of trial by jury. I would, with respect, generally adopt the approach to the application of the rule adopted by the Full Court of the Federal Court, French, O'Loughlin and Higgins JJ, in Natta v Canham [1991] FCA 470; (1991) 104 ALR 143 at 159 - 160:

"The exclusion of evidence to contradict a witness' testimony in cross-examination on matters going to credit is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness. Such evidence is not necessarily excluded because it is logically irrelevant. In the context of a jury trial the first limb of the rationale of the rule may also be expressed in terms of the need to avoid distracting a jury with issues which are not central to the disposition of the case. That consideration, however, does not apply in civil litigation with a judge sitting alone. The central rationale of the principle, namely confining the scope of litigation, is less consistent with its characterisation as a hard and fast rule of law than as a well established guide to the exercise of judicial regulation of the litigation process. While judges will be astute to confine or prevent exploration of secondary issues affecting credibility, the exercise of the judicial function in that regard should not be encumbered by over-nice distinctions between 'collateral' and other matters and the application of enumerated exceptions with a flavour of statutory proviso about them. And even where one of the exceptions can be invoked, as for example where there is an allegation of bias which is denied, a court would only permit such a diversion from the material issues if it were satisfied that the interests of justice, namely the proper investigation of the material issues, demanded it."

30 So a flexible approach was recommended and the court took the view that the exclusionary rule was not absolute in its character and the categories of exceptions to it, which may be recognised by the courts, are not closed. It may be, as the Full Court observed at 160, that:

"...the credit worthiness of a witness is always indirectly relevant to facts in issue and may be decisive of those facts particularly where the witness is a participant in events to which they relate. It is then difficult to justify, by reference to the credit/issue distinction, disallowing evidence which may rebut such testimony. And it is, with respect, correctly suggested that the test for characterisation of a matter as collateral propounded by Pollock CB reduces to a test of sufficient relevance, a question it may be added peculiarly within the province of the trial Judge to determine."

31 In this State the exclusionary principle was most recently discussed in Bannister v The Queen (1993) 10 WAR 484. That was a sexual assault case. The prosecution depended upon the evidence of the complainant. The defence was a denial that the events alleged had ever occurred. The complainant was cross-examined to put to her that she had sexually propositioned the appellant only six days after the last alleged offence was committed. She denied that she had done so. It was held that the trial Judge erred in holding that evidence to be relevant solely to credibility and therefore to raise a collateral issue upon which evidence in rebuttal of her denials would not be permitted.

32 That decision was reversed on appeal, the Court of Criminal Appeal holding that the matter of the alleged sexual proposition was relevant to the question whether the alleged sexual assaults occurred in the way described by the complainant. The testimony therefore went beyond a mere matter of credibility and went to the issue whether the events the subject matter of the charges before the court had in fact occurred. In other words, although the evidence clearly did go to the complainant's credibility and clearly might have an impact upon whether her evidence was accepted by the jury, if they found that the statement she denied had been made they might consider that to be inconsistent with the occurrence of the events charged in the indictment as having occurred without her consent.

33 So to see the issue raised by cross-examination as going to credit would not necessarily determine whether it was a collateral issue, the answer to which question would depend upon it having a relevance not merely to credit, but also to the facts in issue, at least in the sense that the answers given "may fairly influence the belief of the jury as to a matter in dispute": Piddington v Bennett & Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533 per Latham CJ at 545.

34 As to the issue in Bannister, Kennedy J put the question succinctly when, in concluding his judgment at 488 his Honour said:

"In my view, the evidence sought to be called went beyond a mere matter of credibility and went to the issue of whether the events of which the complainant gave evidence had occurred. It would have raised for the jury, if they accepted the evidence for the defence, the unlikelihood that the complainant, having suffered the experiences which she claims she suffered, would sexually proposition the appellant six days later."

The significant point, of course, is the relevance of the material to the proof of the facts in issue. In my opinion, proof that the complainant in this case made the statement in question to the doctor had no relevance to proof of the facts in issue. Counsel's concession that it went merely to the complainant's credit is well made.

35 There are well recognised exceptions to the application of the exclusionary principle and they should be examined, bearing in mind always that, as was said in Natta v Canham, they should not be regarded as a closed list. However, accepted to be among the exceptions to the collateral evidence rule are the fact that a witness has been convicted of a criminal offence or offences bearing upon the character of the witness and his or her truthfulness, the fact that a witness is biased, the fact that a witness has previously made a statement inconsistent with his or her testimony to the court and the fact that the moral character or physical or mental condition of a witness is such as to militate against the witness being accepted as a witness of truth.

36 The case of Smith v The Queen (1993) 9 WAR 99 provides a good example of the operation of the exception to the exclusionary principle that the witness might be revealed to be biased against the opposing party. That also was a case of sexual offences allegedly committed against a child. Again the question was whether the alleged sexual penetrations had occurred. The complainant was a ward of the State. The accused was her foster father. She was asked whether, after leaving the foster home, she had told a third party that she had been ejected because of her drug taking and she had been refused permission to return to the home. It was put to her that she had said that she would make them pay for it. She denied that and as the trial Judge I refused to permit the person to whom she was alleged to have spoken to be called to give evidence to contradict her. That was a ruling held to be in error because if such evidence was given and accepted by the jury, they might consider it revealed bias in the relevant sense causing the fabrication of the charges of which the complainant had given evidence. This is clearly not a case of that type.

37 In this case in seeking to adduce evidence from Dr Payne to contradict the complainant, reliance was placed upon the first paragraph of s 21 of the Evidence Act 1906 (WA) which provides:

"Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it."

38 Whatever may have been the ambit of the common law rule, such a provision is now the source of the procedure which is described as being one of the exceptions to the exclusionary rule, but which, as will appear, really seems to me to be a statement as to when a witness may be cross-examined about a prior inconsistent statement and therefore the circumstances in which, if the witness denies making the statement, "proof may be given that he did in fact make it." The critical phrase is that the witness may be cross-examined as to whether he or she has made a prior statement "relative to the subject-matter of the proceeding, and inconsistent with his present testimony". There are similarly worded sections in the majority of the Australian jurisdictions. They have a statutory lineage of respectable antiquity, being derived from the Criminal Procedure Act 1865 (UK), s 4. What I have referred to as the crucial phrase in s 21 repeats the critical words as they are found in that section.

39 The relevant section was relied upon in the case of R v Funderburk [1990] 2 All ER 482. The court there held that the words "relative to the subject matter of the indictment" contained in s 4 of the 1865 Act effectively meant what they said, relevant to proof of a fact in issue before the court. The Court of Appeal said it was necessary to go back to first principles whereby relevant evidence would be admitted and irrelevant evidence excluded, "relevant" in that context meaning "relevant according to the ordinary common law rules of evidence and relevant to the case as it is being put" (my italics).

"When one comes to cross-examination, questions in cross-examination equally have to be relevant to the issues before the court, and those issues of course include the credibility of the witness giving evidence as to those issues. But a practical distinction must be drawn between questions going to an issue before the court and questions merely going either to the credibility of the witness or to facts that are merely collateral. Where questions go solely to the credibility of the witness or to collateral facts the general rule is that answers given to such questions are final and cannot be contradicted by rebutting evidence. This is because of the requirement to avoid a multiplicity of issues in the overall interests of justice."

The judgment continues by referring to the fact that the authorities show, inter alia, that apart from the obvious rule that the defence may call evidence contradicting that of the prosecution witnesses where their evidence goes to an issue in the case, such contradicting evidence may also be led to show that the witness made a previous inconsistent statement "relating to an issue in the case", citing the 1865 Act. The exceptions to the rule are said to "demonstrate the obvious proposition that a general rule designed to serve the interests of justice should not be used where, so far from serving those interests, it might defeat them." (486)

41 In Funderburk the appellant was charged with having unlawful sexual intercourse with a 13-year-old child. Eleven occasions were described and the complainant's description of the first act was given in terms which clearly described, by reference to pain and bleeding, the loss of her virginity. The defence was that no such acts had occurred. It was suggested therefore that the complainant was lying to support her mother who bore the appellant a grudge because of disputes between them. To explain how so young a child could, if she were lying, give detailed accounts of the acts of intercourse, the defence sought to show that she was sexually experienced and had either fantasised or transposed to the appellant previous experiences with other males. The defence wished to cross-examine the child to put to her that before the first incident of which she complained, she had spoken to a third party to whom she had said she had had sexual intercourse with two men. If she denied it, the defence wished to call the witness in rebuttal. The trial Judge refused to allow the cross-examination and that was held to be wrong because, even considering that the cross-examination went to the complainant's credit, it was clearly permissible quite outside the bounds of the statute.

42 The court went on to hold that had she denied what was put, evidence to contradict her could have been led as the subject matter was "relative to the subject matter of the indictment" within the meaning of the 1865 Act. At 492 their Lordships said:

"It seems to us that on the way the prosecution presented the evidence the challenge to the loss of virginity was a challenge that not only did the jury deserve to know about on the basis that it might have affected their view on the central question of credit, but was sufficiently closely related to the subject matter of the indictment for justice to require investigation of the basis of such a challenge."

43 In other words, the complainant had given evidence in effect that she had lost her virginity when the appellant first had intercourse with her. That was hardly likely to be the case if she was found to have previously admitted to the loss of her virginity. In my opinion the case is not unlike that of Bannister in this Court, but there is no element of relevance of that kind in this case. I remain of the view that the relevance of the evidence which the appellant proposed to adduce was solely to the credibility of the complainant, had no relevance to the facts in issue or the subject matter of the proceeding, and was rightly held by Deane DCJ to be inadmissible. There could be no suggestion that having ventilated the issue with the complainant, and having received an answer, the appellant would suffer any injustice by the incapacity to contradict the complainant on this point.

44 Before leaving the case I should observe that the difficulty that often arises in such cases is to decide when a matter is collateral as opposed to when it has a relevance to the proof or contradiction of facts in issue in the case. In Funderburk at 491, as in other cases, courts have expressed doubts as to whether the test to which Pollock CB referred in AG v Hitchcock was a useful one. Their Lordships said that it seemed to them to provide no guidance as to how to decide whether a fact is collateral or not, and there are clearly cases where difficulty is occasioned in making that decision because the question may involve matters of degree. Their Lordships referred to a statement in the English edition of Cross on Evidence with which they were "disposed to agree" that "where the dispute at issue is a sexual one between two persons in private the difference between questions going to credit and questions going to the issue is reduced to vanishing point."

45 In the Australian editions of Cross on Evidence, the observation is to be found in par [19070]. It is made in the context of a reference to proof of non-consent and the question of the accused's belief in consent. The statement made in the Sixth Edition is:

"Evidence is often effectively limited to that of the parties, and much is likely to depend upon the balance of credibility between them. This has important effects for the law of evidence, since it is capable of reducing to vanishing point the difference between questions going to credit and questions going to the issue. If the only issue is consent and the only witness is the complainant, the conclusion that the complainant is not worthy of credit must be decisive of the issue."

46 The authority cited for the observation is R v Viola [1982] 3 All ER 73, 77. That was a decision of the English Court of Appeal, but was concerned with the application of s 2 of the Sexual Offences (Amendment) Act 1976 (UK) which prohibits without leave the adduction of evidence or cross-examination as to the complainant's other sexual experiences. It is provided that leave should not be given unless the trial Judge is satisfied that it would be unfair to the accused to refuse it. The decision in truth provided no occasion to consider whether in cases of alleged sexual offences the credibility of the complainant is always to be regarded as going to a fact in issue, the occurrence of the acts complained of, whether they occurred without consent and whether if they did so, the accused may have had an honest and reasonable, albeit mistaken, belief that he had consent for what occurred.

47 The matter was referred to by Franklyn J in Bannister at 494 where his Honour said that although he could "wholeheartedly agree" with the statement in Cross, construed as referring to sexual cases where the only significant issue is consent, his Honour had:

"...reservations, however, as to its applicability as a general rule to allegations of sexual offences said to have been committed in private where the issue is whether or not the acts complained of occurred at all, as in the present case. If it were to so apply then, in my view, it would logically be equally applicable to any offence in respect of which there is no extrinsic evidence and no witness other than the offender and the victim."

48 I respectfully agree with his Honour's reservations, but as the proposition was adverted to in argument in this case, I should say, I think, that I would go further. In my opinion, the statement in Cross is unsupported by authority. In Viola at 77 the Chief Justice, Lord Lane, delivering the judgment of the Court of Appeal, discusses when leave should be given under the section. His Lordship says simply that leave will generally be given if injustice can be demonstrated in that the questions relating to the sexual experience of the complainant go to an issue in the trial. His Lordship said:

"...if the questions are relevant to an issue in the trial in the light of the way the case is being run, for instance relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted, because to exclude a relevant question on issue in the trial as the trial is being run will usually mean that the jury are being prevented from hearing something which, if they did hear it, might cause them to change their minds about the evidence given by the complainant. But, I repeat, we are very far from laying down any hard and fast rule.

Inevitably in this situation, as in so many similar situations in the law, there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case, on one hand evidence of sexual promiscuity may be so strong or so closely contemporaneous in time to the event in issue as to come near to, or indeed to reach the border between mere credit and an issue in the case. Conversely the relevance of the evidence to an issue in the case may be so slight as to lead the Judge to the conclusion that he is far from satisfied that the exclusion of the evidence or the question from the consideration of the jury would be unfair to the defendant."

That statement, to my mind, is far from supporting the observation made in Cross.

49 In my view, that observation is wrong in principle as well as in logic. I can see no reason for the introduction of any special rule in what are described as sexual cases, although, of course, in those cases, as in many other types of case, it may be that the evidence comprises the word of one witness against that of the accused and, in such a case, the determination of questions of credibility will no doubt be determinative of the issue in the case. However, to say that is to say nothing to require the law to blur the distinction between collateral issues going to credit alone and those concerned with the matters at issue in the case.

50 For the above reasons I would dismiss the appeal.