11 What his Honour had then to do was to define what prejudicial effect, if any, the admission of the challenged evidence might have upon the respondent. Having thus identified some perceived prejudice, his Honour had to carry out the exercise of balancing the high probative value which his Honour saw, correctly as I respectfully think, in the challenged evidence, against that perceived prejudice, so as to reach a considered and reasoned answer to the question whether the former factor outweighed substantially the latter factor. The essence of that task is described as follows by McHugh J in Pfennig v The Queen (1994-1995) 182 CLR 461 at 528, 529:
"If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial."
12 This approach was followed by Hunt CJ at CL in R v Milat, unreported: 5 September 1996.
13 I accept that it would be quite wrong to suggest that Judge Coolahanshould have written out in his Honour's judgment a checklist of the steps which s 101 required to be followed and then, so to speak, have ticked off each one, step by step, in a fashion more apt to McHugh J's "mathematical calculation", than to a value judgment. It must be, however, that any s 101 ruling must make apparent that the Judge has, in fact, looked in a precise way at what the section actually says and requires; and has then considered in a precise way, which has been given adequately transparent expression, how the Judge has assessed the relevant evidence given on the voir dire, and how he has then balanced out the competing statutory considerations. It is fair to acknowledge that his Honour received very limited assistance from both counsel who appeared before him and that such assistance did not at all help his Honour by focusing upon s 101(2) in the way that I have suggested.
14 In my respectful opinion, the judgment, now under appeal, does none of those things. In the present case, if one asks what actually persuaded Judge Coolahan that there was a risk of concoction so real as to justify the exclusion of evidence which was agreed on all sides to be, if accepted, clearly probative, then the only exposed reasoning relies upon three stated factors "individually and together". No one of those factors engages, in any way, whether there was anything about the use of the bottle and the lubricant that was either unlawful or otherwise reprehensible, thereby producing a risk of prejudice to the accused such as to justify excluding the evidence. It is to be kept in mind, in that connection, that even in such a case, the exclusion of the evidence is not the only just way of dealing with any perceived prejudice: adequate direction by the Judge to the jury is an example of a possibly appropriate alternative in a particular case.
15 The first of the factors relied upon by Judge Coolahan is the close mother/daughter relationship of the complainant and her mother. That, of itself, could not give rise to a rational inference of the existence of a reasonable possibility of concoction between mother and daughter.
16 The second factor is that two days elapsed between the first complaint of daughter to mother and the holding of the first interview of the complainant by the investigating police. That too, could not give rise of itself to the suggested inference.
17 The third element is the undoubted discrepancy between the voir dire evidence of the complainant and of her mother as to whether the issue of the brown bottle was first discussed between them prior to the making of the complainant's first official statement. The evidence itself is sparse. It seems to me to be as consistent, when viewed with practical common sense, with one or other of the witnesses having simply been mistaken, as it is consistent with a reasonable possibility of concoction. I observe that neither witness had put to her that in fact there had been any concoction; or indeed, any other improper pressure or influence going to the reliability of the challenged evidence.
18 His Honour seems to me, and in all proper respect to him, not to have done what this Court said in Harker, that he needed to do. I would allow the Crown appeal and set aside the challenged ruling.