I suggest that the photograph of the bruise and your assertion that it was an injury that occurred during this assault is a fabrication?---Okay, sure. I reject you completely.
Thank you, and that - - -
MR DRUMGOLD: I'm sorry, your Honour, but the question is unfair, I think. I think the proposition advanced by this witness was she assumed. I think that was the word that was used. My friend is putting it definitively. I think she used the word 'assumed'. I can find the reference.
HER HONOUR: Well, there are two things. There's a different basis on which I can think the question might have been objected to but it wasn't and the answer has come, and if that's the submission that's going to be put, if there's a proper basis for putting it, then the question should be allowed. I think I'll leave it where it lies, Mr Prosecutor.
MR DRUMGOLD: Thank you, your Honour.
MR WHYBROW: Excuse me one second, if I may, your Honour.
HER HONOUR: My concern, Mr Whybrow, so I'm not being too Delphic, is the basis for putting as opposed to asking, if I could put it that way, given that you can't know the whole universe of information about that topic.
MR WHYBROW: No. That's why- - -
HER HONOUR: But if you're going to make the submission - - -
MR WHYBROW: That's why I confined it to something else and there's other - - -
HER HONOUR: But you are going to make the submission that it's a fabrication based on inference.
MR WHYBROW: Yes.
HER HONOUR: I think I have to allow it, Mr Prosecutor.
MR DRUMGOLD: Yes, your Honour.
825 We do not, of course, know what prior steps the prosecutor took to attempt to clarify matters with Ms Higgins in conference. He may have sought a detailed explanation and received some form of assurance or some of the evidence adduced in cross-examination may have come as a complete surprise to him (a hardly novel occurrence). As can be seen from the terms of the prosecutor's objection based on "unfairness", he was understandably trying to embrace the notion Ms Higgins had not been definitive as to what the bruise photograph depicted (although this might have been thought a forlorn endeavour forensically given the terms of her statutory declaration, a review of all the answers given in chief – rather than just the ultimate one – and the definitive answers given earlier in the cross-examination).
826 It is beyond argument that the prosecutor’s obligation was to present all available, cogent and admissible evidence: Nguyen v The Queen [2020] HCA 23; (2020) 269 CLR 299 (at
