Abernethy v The Queen; Hawkins v The Queen

[2020] HCATrans 185

[2020] HCATrans 185

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M45 of 2020

B e t w e e n -

STUART ABERNETHY

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M46 of 2020

B e t w e e n -

GABIEN HAWKINS

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 NOVEMBER 2020, AT 11.30 AM

Copyright in the High Court of Australia

____________________

MR O.P. HOLDENSON, QC:   May it please the Court, I appear on behalf of the applicant, Abernethy.  (instructed by Tony Hargreaves & Partners)

MR C.T. CARR, SC:   If the Court pleases, I appear on behalf of the applicant, Hawkins.  (instructed by Tony Hargreaves & Partners)

MR C.B. BOYCE, QC:   If the Court pleases, I appear with MR M.R. WILSON for the respondent in both matters, your Honours.  (instructed by Office of Public Prosecutions (Vic))

BELL J:   Yes, Mr Holdenson.

MR HOLDENSON:   The special leave question which arises in this matter concerns what constitutes an admission within the meaning of the Uniform Evidence Act.  A convenient place to see that definition is at page 94 of the application book.  At the head of the page, your Honours will see there in the first paragraph the definition of “admission” from the dictionary within the Uniform Evidence Act.  More precisely, the special leave question which arises is whether a representation previously made, that is, a representation made out of court by an accused person which confirms or even repeats or acknowledges a fact which the prosecution seeks to prove as part of the prosecution case in the trial of that accused is - and I turn to paragraph (b) of the definition:

adverse to the person’s interests in the outcome –

of the trial where that accused person does not dispute that fact in that trial.

At the trial, Abernethy relied in his defence upon the contemporaneous statement which he had made to the police officers who attended the scene, and which had been tendered into evidence by the Crown.  The trial judge directed the jury, unequivocally and repeatedly, that that statement made by Abernethy could only be used for and against Abernethy in the trial of Abernethy.  A similar direction was given with respect to the similar evidence given in the form of a statement, that is, by Hawkins.  It was not to be used in the trial of Abernethy either for or against Abernethy. 

Hawkins, in her trial, relied upon her statement in which she said, first, that she was present; secondly, whilst present, Mr Hunter entered into the house and sat down on the stairs.  Hunter was seated on the stairs when Abernethy arrived.  When Abernethy arrived, Hunter stood up, swung his fist at Abernethy, which Abernethy was able to block, and then a scuffle ensued in which Abernethy restrained Hunter in a hold on the ground, or the floor, Hunter lashing out with his arm and getting out, and Hawkins became involved in the scuffle. 

Some of what Hawkins said repeated or acknowledged the correctness of passages within the evidence which had been given by Hunter.  The learned trial judge ruled, and the Court of Appeal affirmed that Abernethy could not rely upon, in his trial, any aspect of the statement made by Hawkins.  In other words, section 83 of the Uniform Evidence Act, which is set out on the middle of page 94 of the application book, could not be relied upon by Abernethy because Hawkins’ statement contained no evidence of an admission within the meaning of section 83(1) – the word “admission”, of course, picking up the definition from the dictionary. 

The reasoning of the court is set out – in short terms, admittedly – in the application book at page 99, in paragraph 60.  It is within that paragraph that it is said that the parts of Hawkins’ statement where she stated that she was present and where she described her physical contact, that interaction with Hunter, were irrelevant because they were not in issue, having not been disputed by her in her trial or, indeed, favourable to her defence and, hence, concluded the court, not adverse to her interest in the outcome of the proceeding within the meaning of paragraph (b) of the definition of “admission” within the dictionary. 

Now, it is our submission that that holding is erroneous for several reasons.  First, that holding involves an erroneous characterisation of a number of the representations which had been made by Hawkins in her statement.  As I said, she made within her statement a number of representations which confirmed matters which had been described by Hunter within his evidence before the jury, thereby, we say by way of submission, better enabling the jury to accept Hunter’s evidence, this case being dependent upon the jury accepting Hunter’s evidence.

In that regard your Honours may well recall the passage within his Honour’s charge to the jury, set out in the application book at page 34 where, at lines 7 to 12, the learned trial judge identified the proposition that:

It is common ground in this case that the one issue is the credibility of John Hunter.

So what we say here is that within that paragraph the court below disregarded the fact that some of what Hunter – Hawkins said in her statement confirmed aspects of the prosecution case.

The second basis upon which we say that the holding is wrong is that the court has erred in its construction of paragraph (b) of that definition – the phrase “adverse to the person’s interests in the outcome of the proceeding”.  In her trial, Hawkins’ interest was to achieve or obtain a verdict of not guilty.  I am not seeking to reverse the onus.  That can be alternatively expressed as being Hawkins’ interest was to prevent the Crown from achieving or obtaining a conviction.

So it must follow, in our submission, that any previous representation made by Hawkins, which cuts across or undermines or damages in some way that interest, is adverse to her interest in the outcome of the proceeding.  What that would mean is that any out‑of‑court statement made by Hawkins which would assist the Crown to prove some fact relevant to the proof of an element of the offence charged, or which would support, either directly or indirectly, some component or aspect of the prosecution case and which would thereby assist the Crown to achieve or obtain a conviction, would be adverse to Hawkins’ interest in the outcome of the proceeding and hence an admission. 

Again, that would include any representation made by Hawkins in her statement which could be used by the tribunal of fact, the jury, in its determination to believe or accept the evidence which had been given before the jury by Hunter.

If regard is had to that definition of “admission” immediately set out at the head of page 94 of the application book, it is apparent from the wording that in making the assessment as to whether or not some out‑of‑court statement falls within that definition, no regard is to be had to what other evidence might be available to the Crown to call at the trial, no regard is to be had to what other evidence has in fact been called by the Crown, and there is no limitation or restriction within that definition which would operate in such a manner that the previous representation be confined to some fact which is disputed or has been placed in issue by the accused.

But perhaps more importantly, and thirdly, the reason for the holding being wrong is that that holding is inconsistent with that which was recently decided by this Court at the end of June in the case of Nguyen 94 ALJR 686. The material facts can be set out in short form. Nguyen was prosecuted on indictment for two counts of assault – count 1, throwing a bottle at victim one, and hitting victim one; and count 2, throwing a bottle at victim two.

In his record of interview, Nguyen stated three things.  One, he did throw those two bottles of beer; secondly, he threw the first bottle of beer at victim one because otherwise he himself would have been hit; and, thirdly, Nguyen having run away but being followed, he threw the second bottle as a warning to the person or persons who had followed him.

So, in his record of interview, Nguyen did not dispute being present at the scene and he did not dispute throwing the two beer bottles.  This Court proceeded on the basis that those passages within the record of interview were admissible as admissions under section 81(1) of the Uniform Evidence Act.  The other passages within the record of interview, wherein Mr Nguyen set out his reasons for the throwing of the two bottles, they were admitted into evidence - I should say they were admissible in evidence under section 81(2). 

So Nguyen’s Case recognises and, indeed, expressly recognises, just as did the common law, that there were things called mixed statements.  A mixed statement contained an inculpatory portion and an exculpatory portion, the inculpatory portion, falling within section 81(1), and getting admitted into evidence as evidence of an admission, and the exculpatory portion gets into evidence under 81(2).

The inculpatory portion which gets into evidence under 81(1) is inculpatory even if merely confirmatory or repetitive of some component of the Crown case.  So what you have here is where a situation where the material facts of Nguyen and the material facts of Hawkins, keeping in mind Abernethy sought to rely upon the statement of Hawkins by reference to section 83, are the same. 

Both Nguyen and Hawkins describe the prism, doing something to the person claiming to be the victim, and their state of mind and reasons for doing so.  Neither disputes those particular matters in the trial.  The High Court in Nguyen accepts that Nguyen made admissions, that is, the record of interview contained evidence of an admission within the meaning of 81(1), but our court below held that Hawkins made no admission, that is her statement contained no evidence of an admission within the meaning of section 83(1). 

BELL J:   Mr Holdenson, to succeed you would need not only to make good your proposition that the Hawkins’ statement contained admissions but for the purposes that your client sought to have it tendered in his case, you would also need to support the reasoning of the majority that the whole of the statement would go in by analogy with section 81(2).  Is that right? 

MR HOLDENSON:   That is correct, your Honour.  In that regard we rely upon the reasoning in the joint judgment below and, as your Honour recognises, that reasoning is inconsistent with the reasoning of the learned President, Justice Maxwell.  It is our submission that the reasoning in the joint judgment is correct and we rely on it and we adopt it and it is correct, and the reasoning of his Honour Justice Maxwell is, with respect, incorrect. 

BELL J:   Mr Holdenson, you would also need to overcome the view that I think the court was unanimous in holding, namely, that the refusal to receive the statement of Hawkins in your client’s case did not in the circumstances occasion a substantial miscarriage of justice. 

MR HOLDENSON:   Yes, your Honour. 

BELL J:   As I understand it, Mr Holdenson, that reflected, among other things, the circumstance that neither in your client’s statement nor in Ms Hawkins’ statement was any account given of how Mr Hunter received the injuries that he received.  

MR HOLDENSON:   Well, what we say about that is this.  Indeed, there was a concession made below by the respondent within the respondent’s submissions.  In that regard if we can take your Honours to pages 96 to 97 of the application book.

BELL J:   Yes.

MR HOLDENSON:   Within paragraph 51 at the foot of the page, four lines from the foot of page 96:

In the case of Hawkins, the representations in the statement identified Hunter as the aggressor and made no mention of Hawkins having done anything that might have resulted in injury to Hunter’s legs, intentionally or otherwise.  The representations, by implication, provided an innocent explanation for Hunter’s injuries, namely, that they must have resulted by accident through his own actions. 

Your Honours will recall that within Abernethy’s statement he detailed how it was that whilst he had restrained Mr Hunter on the ground or the floor whilst they were wrestling, that is, during the scuffle, Mr Hunter was struggling back and lashing out with both his arms and his legs and sustained the injuries in that way, keeping in mind that he was still ‑ that is, Mr Hunter was still throughout that period restrained in the headlock on the floor of the house. 

So, what you have within the statement made by Hawkins is express support for the defence of Abernethy that Abernethy had not caused the relevant injury sustained to the facial area of Hunter as had been claimed by Hunter and as put by the prosecution to the jury. 

So, there were passages within the statement made by Hawkins, passages which constituted representations by her which exculpated Abernethy and, in addition, some of the representations cut across what it was that had been said by Hunter in his evidence, not all of it, some of it, thereby being relevant to the question as to whether or not the jury could accept, beyond reasonable doubt, the evidence given by Hunter. 

But still with the question your Honour Justice Bell has posed to me concerning substantial miscarriage of justice, as we have set out in our written document there are two matters to which we do draw the Court’s attention.  When the court concluded, as it did, in a paragraph at as I recall page 83 of the judgment below at page 106 that there had been no miscarriage of justice, what you do not see within that paragraph is three things. 

You do not see within that paragraph the performance of a function required by an appellate court in determining whether or not there has been a substantial miscarriage of justice by reason of the trial judge having erroneously not allowed an accused person to rely upon certain evidence in his trial.  In other words, there is not there set out the analysis to be engaged in as prescribed by this Court in Baini back in 2012. 

But it also disregards what, in our submission, is the obvious advantageous effect of an accused person not only being able to rely upon his own contemporaneous statement made to the police officers, but also being able to rely upon a contemporaneous statement made by another person, the content of which is consistent with and, indeed, tends to confirm the accused person’s own statement in circumstances where the two statements were made separately and independently and there be no opportunity for the two makers of those two statements to collaborate or to collude or to engage in some concoction. 

In other words, the absence of Hawkins’ statement from Abernethy’s trial had the effect that Abernethy was denied the benefit of, if I could use a phrase from another context, “mutual corroboration”, that is, there would be mutual corroboration of Abernethy’s statement in the form of what had been said by Hawkins.

BELL J:   The reasoning in paragraph 83 might have been compressed, but their Honours were directing attention to the circumstance that the injuries suffered by Mr Hunter were consistent with his account and in Ms Hawkins’ statement in your client’s case and in your client’s statement in Ms Hawkins’ case, no explanation consistent with those injuries was given.  Added to that, Mr Holdenson, were Ms Hawkins’ statement admitted in your case, one might have expected that the jury would have been directed under section 165 respecting the reliability of the hearsay content of that material.  Do you accept that?

MR HOLDENSON:   I do accept that, but the proposition with respect to the provision your Honour refers to, 165, it might be in Victoria a provision of our Jury Directions Act.

BELL J:   I am sorry; you are right.

MR HOLDENSON:   The source of the direction is irrelevant.  The content of the direction, I understand what your Honour means, but of course the jury are not bound to act upon that direction in the sense of acting upon in such a manner as to reject the statement.  It is just as subjective to scrutiny.  What they would be subjecting to scrutiny is a statement which did not purport to be a full and complete description of the precise mechanism by which or through which Mr Hunter received each and every one of his injuries, many of which were not even known at the time of the taking of the statement. 

It is also in that regard to be kept in mind that there was some confirmation of the latter parts of Hawkins’ statement because it was observed to be correct by the first police officer who attended, namely Police Officer Birmingham.  But one thing is for certain.  Even if the statement did not directly explain the mechanism by which each particular injury was sustained, what it did do was very much paint a picture of Mr Hunter ‑ ‑ ‑

BELL J:   I think we have the point, Mr Holdenson.

MR HOLDENSON:   I think my time is up.  I am sorry, I cannot see the light.

BELL J:   I think we have the point, and the light is on.  Yes, Mr Carr.

MR CARR:   Your Honour, can I pick up on the question that your Honour Justice Bell asked about section 83?

BELL J:   Yes.

MR CARR:   Obviously enough, that was determined in our favour and there is no attack on that determination in the respondent’s submissions.  In any case it is, in my submission, plainly correct.  When one looks at the work done by sections 81 and 83 respectively, section 81 lifts the effect of the hearsay and opinion rules in respect of two categories of evidence.  It lifts the hearsay rule by virtue of 81(1) over evidence of an admission, and in 81(2) it lifts the hearsay and opinion rule over what I will describe as qualifying evidence, importantly in paragraph (b), evidence:

to which it is reasonably necessary to refer in order to understand the admission.

So, section 81 admits evidence that is an admission and evidence that is…..to an understanding of that admission.  The first observation to be made about section 83, then, is that it is implausible that Parliament intended to lift – or to reimpose, rather – the hearsay and opinion rules in respect of only the evidence of the admission dealt with in section 81(1) but to leave out of account and to allow the parties to rely upon that evidence of an admission without the evidence that the court has found by virtue of 81(2), that it is necessary to have regard to in order to understand the evidence of the admission.

So, if both parts of the evidence admitted under section 81 do not come across – if I can use that expression – by virtue of 83, the result would be that parties would be permitted to rely upon an admission in the way that was misleading or confusing and without the benefit of evidence that the court has found, it is reasonably necessary to refer to in order to understand that evidence.  The majority’s conclusion must be right. 

Moreover, when one has regard to the work done by section 83(1), in my submission it clearly must apply – or the phrase, “evidence of an admission” in that subsection must apply to all of that evidence which is admitted under section 81 for this reason.  Section 81, as I have already said, admits evidence within two categories which is admitted under 81(1) and that which is admitted under 81(2).  It remits the hearsay and opinion rules in the trial in respect of those two categories of evidence. 

If section 83(1) only concerned the first category and only reimposed the hearsay and opinion rules in respect of that first category, then the consequence would be that the second category – the evidence admitted under 81(2) – would not still be subject in the trial of a third party to the hearsay or opinion rules.  That evidence would remain in evidence, not subject to hearsay and opinion rules, if section 83(1) did not reimpose those rules which have been lifted by section 81.  So, it must be that section 83 deals with both categories of evidence that have been admitted under section 81.

The point is reinforced by the presence in section 83 of section 83(3), which provides that:

Consent cannot be given in respect of part only of the evidence.

That indicates a clear legislative concern that the evidence not be used in a way which is misleading or confusing, that it be admitted in its entirety, and thus, consistent with the requirement that evidence admitted under 81(2) must be reasonably necessary for the understanding of the admission, the legislative concern that is embodied in section 83(3) could only be met if the subject of section 83 was the entirety of the evidence admitted under section 81. 

So for those brief reasons, in my submission, the majority in the court below, or the joint judgment in the court below was clearly correct in that reasoning which, as I earlier submitted, has not been attacked by the respondent in this Court.

Turning then, if I might, to your Honour Justice Bell’s second question that your Honour raised with Mr Holdenson about the effect of paragraph 83, the second sentence of that paragraph, in my submission, is unsustainable.  The statement, the two statements, or relevantly for my client’s case, the statement of Mr Abernethy, refers to, at the end of page 180, at the end of the narrative of the facts involving the complainant, the arrival of police.  That is consistent with the holding of the Court of Appeal, which noted at paragraph 27 on page 90 of the application book:

When the police arrived, they separated the parties and took statements from Abernethy and Hawkins.

So the statements were taken immediately after the parties had been separated, so there was no opportunity for joint concoction or collusion.  The absence of that opportunity was significant for at least, and this is what matters for present purposes, it permitted a legitimate argument of some force to be placed before the jury if the two statements were in evidence together, in the case of the applicant, that the common features of the statements, not being the product of collusion, were indicative of the veracity of both of those statements and thus corroborating the applicant’s defence.

BELL J:   Mr Carr, I take the Court of Appeal in paragraph 83 to have been making the simple point that in circumstances where a complainant gives an account of events and the complainant’s injuries are consistent with that account, and the statements of the two co‑accused give no credible explanation for the injuries that the complainant received, it is putting it high to contend that the absence of the statements of one’s co‑accused might have occasioned a substantial miscarriage of justice.  That is, in essence, the reasoning as I take it from paragraph 83 read as a whole. 

MR CARR:   Well, of course the test that fell to be – or the prerequisite in order to dismiss the appeal upon the presupposition that founded that paragraph, namely that evidence had wrongly been excluded, was that conviction was inevitable, and nothing in paragraph 83 justifies or states a conclusion that a conviction was inevitable.  Certainly, I do not recall that submission having been made in writing at least and I am not sure that it was made orally either in the court below. 

That is the test that had to be satisfied and, in my respectful submission, it cannot be satisfied merely because of an at least difficult to maintain conclusion that little benefit would have accrued to the applicant if the evidence had been admitted and merely because the statement of the – that the applicant sought to rely upon did not explicitly provide an explanation for the injuries. 

That is especially so when one recalls the circumstances in which the statements were taken, that is they were taken immediately, they are in relatively short form, it is obvious from their content that neither was asked to address what injuries had been incurred, neither was asked to, it would seem from their content, do anything more than give their account of events in relatively brief terms. 

Certainly, Mr Abernethy’s statement, which is at pages 179 and 180 in typed form of the application book, makes it clear – and it is Mr Abernethy’s statement that matters for my purposes - in the last line of 179, or the last two lines:

I grabbed him in a headlock and took him to the ground.

So, Mr Abernethy is talking of something with some force having taken place. 

At some point around then I recall I ducked a punch to the head but it’s hard to say exactly when that happened because I was in fear for my safety. 

So it is clear that he is not purporting to provide a complete account of all events that took place. 

John was struggling and trying to strike me from the ground and I recall William sitting on Johns back to pin him down - 

and so forth.  So he describes what is clearly an encounter that involves significant physical force being applied.  In circumstances where that physical force can clearly account for all of the injuries that are described in the judgment, in my submission, there is little in the point made in the last sentence of paragraph 83 and certainly not sufficient to justifiably lead to a conclusion that conviction was inevitable. 

BELL J:   Yes. 

MR CARR:   If the Court please. 

BELL J:   Thank you, Mr Carr.  Yes, Mr Boyce.

MR BOYCE:   Your Honours, can I first deal with the matter that is put against me insofar as it has been described as a concession of sorts as to the means by which each defendant chose to defend the matter by reference to their statements.  One sees at paragraph – I think it is paragraph 51 of the joint judgment, application book 96, I think Mr Holdenson drew the Court’s attention there, in particular, to the last sentence:

The representations –

over onto application book 97:

provided an innocent explanation for Hunter’s injuries, namely, that they must have resulted by accident –

That was certainly the submission - that was the means by which or that was the defence that was being run but there was no concession on the Crown’s part that the defence was really credible in any way, shape or form for the reasons that have already been discussed.  So, yes, that was the defence.  Whether it was credible or had any means by which it could really explain Mr Hunter’s not insubstantial injuries was another matter entirely. 

Secondly, when I am being met with things that I have not attacked or in my material I would have thought insofar as section 83 is concerned - insofar as – I am in particulars on paragraph 6.7, I think it is, of our response - we do, politely, I would have thought, where we have no official means to call into question reasoning by the court below, we do pretty seriously call into question the majority’s reasoning on section 83. 

But the point that our friends make fails at the threshold, it is submitted, because it must be accepted that the court below was wrong to find otherwise that the representations in the two statements were admissions.  Can I take your Honours just briefly here - and I make this submission mindful of what Mr Holdenson has said, namely, that the parts of the statements had the capacity to support Mr Hunter’s evidence.  Can I take your Honours to application book 47 to 48?  These are the directions the judge gave – two pages there and they really commence at line 4 of application book 47 over on to application book 48, transcript 549.

There, the judge tells the jury what use is to be made of the statements in each party’s case.  He is dealing, of course, with a version that Hunter gives and then there is a contradictory version that each accused gives.  His Honour directed the jury – one picks this up, really, at 548 transcript – which is application book 47, at lines 18 to 28 – that if the contents of the statements give rise to a reasonable doubt then they must acquit.

At 548, 29, to 549, 4, for conviction is not enough that the jury may merely prefer Hunter’s version.  At application book 48 – which is at transcript 549, line 5 to line 12, the direction is, in essence, if you do not think the statement or version is correct but unsure where the truth lies, then you must acquit – that is to say, perhaps, if it is reasonably possible.  But, importantly, at application book 48, transcript 549, at lines 13 to 22, his Honour directed the jury as follows.  In fact, if your Honours will forgive me, I will read this: 

In fact, even if you are convinced that the accused statement, taken individually in the case against each of them is not true, it is not the case that you must convict the particular accused who made the statement you are then considering.  In those circumstances, you should put the accused account in the statement to one side and ask yourself whether the prosecution have proved that accused guilt beyond reasonable doubt, on the basis of evidence that you do accept.  So I hope that makes that clear.

So, we would, with respect, emphasise the words “you should put the accused account in the statement to one side”.  So, the effect of that direction is – and, of course, this direction supplanted earlier directions given about the use of the statements – but what that meant was, was that the admissions insofar as they are teased out by our friends of these statements – and I will come to how that occurs in due course – really lived only in view of a prospect of acquittal. 

In other words, because the version is the version in the statement, it will come to – there is no way – they are the same representations.  We are now told that – the argument was that there was separate or, necessarily, implied representation included within the representation of what is, in effect, preventative detention of presence in a scuffle.  But, if there is any doubt or if that is not true, it is to be placed to one side.  If it is in two minds, then there is acquittal.

So, there is no means by which it is submitted, given the way in which this jury were directed.  Ultimately, the point that our friends make, initially, gets any foothold.  We say that with some certainty because, of course, the definition of “admission” calls attention to the outcome of the proceeding.  As I think Justice Edelman said in Nguyen’s Case - it has already been referred to - that is perceived to be a significant – or at least to some degree, a limiting factor upon matters.

Of course, if it did not have the capacity, or those representations that our friends have teased out of the statements did not have the capacity to be used adversely to the accused’s interests in the proceeding, given the way in which the jury were directed, they could not be admissions, properly so‑called, and if that is so, our friend’s argument fails the threshold…..which must be the case. 

Now, the fact of the matter is, your Honours, if I can just backtrack a little, that, as we say in our written material, the defence in this case reasonably saw a forensic - and we would submit they saw a significant forensic advantage in tendering of the witness statements by the Crown.  Their tender was reasonably perceived by the defence to make it harder for the Crown to prove its case.  The statements were tendered by agreement, and for the truth of their contents, and obviously were not the subject of cross‑examination. 

The representations as to presence and the existence of the scuffle, so we are now just told – the applicants contend, in their material, cannot be disentangled or decoupled from the self‑serving portions of the representations or the statements.  So one picks this up in our friend’s written material at, for example, paragraph 26 of their application, which one finds, conveniently at application book 123.  If I could just take the Court to that, you see there, it is the third sentence, it is put against us:

The admissions to presence and involvement in a scuffle in Hawkins’s statement were not made in those express terms, but rather were contained in her narrative description of her attendance and involvement in the altercation.

So it is said that the representatives that were clearly thought to be self‑serving and assisted the defence in meeting the Crown case and made the Crown case more difficult to prove were one and the same, so it is put, by our friends, as those that are now said to be admissions.  Now, there is a conceptual problem with that, we would submit, because it cannot coherently be said, as we argue, that those representations, or that representation, is adverse to the interests of the party in the outcome of the proceeding when clearly it is relied upon.  Its whole reason for existence is to make the Crown case harder to prove.

BELL J:   But that is the point of principle that the applicants seek to agitate.  Either one looks at, in the context of a criminal trial, the plea of not guilty putting in issue proof of each element of the offence and a statement made by an accused that acknowledges presence at the scene, physical interaction with the complainant.  Regardless of the forensic choices that are made in the conduct of the trial, on one view it can be said that is an admission.  That is the issue that is put here.

MR BOYCE:   Yes, but it is in the outcome of the proceeding, your Honour, and it is one and the same representation.  The representation is that we engaged preventative detention.  That is the representation, which is said by our friends to carry with it by necessary implication further implied representations.  But they, on their face, must make the Crown case harder to prove, as a matter of coherence, and given that is the representation, cannot conceivably be treated as adverse to the party’s interests who seek to rely upon and who prevails upon the Crown to lead it as contrary to their interests in the outcome of that proceeding.

That is at a conceptual level and your Honour is correct.  But then when you go to the directions, you see as to how it was ultimately to be used.  You see, even if I am wrong at a conceptual, theoretical level – and I do not concede that I am – and in some way these necessarily implied admissions can be detached or decoupled from or unmoored from the positive representations that formed the defence, the way in which this jury were directed was – they only had significance or only had relevance in an instance where there would be an acquittal.  So they still could not, by that means, qualify as admissions.

That is really not even all, your Honours, and can I just go to the third reason.  Your Honours will see in the reasons of the joint judgment reference to the “triple 0” call and ‑ ‑ ‑

BELL J:   I am sorry, what paragraph, Mr Boyce?

MR BOYCE:   In the joint judgment, for example, at paragraph 58, application book 98, you see – if I could just read that – their Honours are reasoning as to whether or not the representations formed admissions and, at paragraph 58 it said:

There was no issue in Abernethy’s trial either about his presence at the scene or his physical contact with Hunter.  To the contrary, as senior counsel for the respondent pointed out, the defence response filed on Abernethy’s behalf expressly relied on the contents of his statement.  Moreover, the defence response admitted the contents of transcripts of all of the triple 0 calls –

and I might say this occurred by way of formal admission, pursuant to, I think, 182 or 183 of the Criminal Procedure Act, so a formal admission of the contents:

which confirmed his involvement in the altercation.  Likewise, there was no issue about Hawkins’ presence at the Property or that she made physical contact with Hunter.  The defence response filed on Hawkins’ behalf expressly relied on the content of her statement and admitted the transcript of the triple 0 calls –

which, again, in Hawkins’ case were formally admitted.  One sees a bit more description of those triple 0 calls in the joint judgment at paragraph 23, which is found at the bottom of application book, 88 to 89:

Once she arrived at the Property, Hawkins again called triple 0 and could be heard by the operator telling Hunter that ‑ ‑ ‑

BELL J:   Mr Boyce, I am going to interrupt you.  We appear to have lost the link with Mr Holdenson and Mr Carr.  I will just inquire:  Mr Holdenson, can you still hear us?  No, I am sorry, Mr Boyce, it does appear that we have lost the link.

The Court will adjourn briefly in order that the link can be re‑established, Mr Boyce.

AT 12.22 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.31 PM:

BELL J:   Mr Holdenson, am I right in my understanding that you were able to hear all that Mr Boyce said in those last few moments before the Court adjourned?

MR HOLDENSON:   That is correct, your Honour.  We missed nothing.  At all points we could see and hear the Court and at all points we could see and hear Mr Boyce.  We have missed nothing.

BELL J:   Thank you, Mr Holdenson.  It is just that we were deprived of the image of you and Mr Carr, but everything seems to be remedied now.  Yes, Mr Boyce; do go on.

MR BOYCE:   Thank you, your Honours.  I was taking the Court to application book 88, paragraph 23.  I was going to read that paragraph, but I do not think it is necessary for me to do so, if your Honours can scan your eyes over it, but you see there the content of the triple 0 calls, proof, presence, and the existence of the scuffle.

BELL J:   Yes.

MR BOYCE:   Our point is that, even if it were not enough that conceptually at a point of pure principle these could not be categorised as admissions, when one has regard to the way in which the jury were directed - I have taken the Court to that - and other formal admissions that were made in the case, vis-à-vis these triple 0 calls, for example, by no means could it then, again coherently, it is submitted, be said that what appeared in the statements insofar as by necessary implication it is said by our friends that there was a scuffle or presence and the scuffle could be admissions properly so‑called.

They are our submissions on the primary question and of course if they are correct and essentially are at one with the result arrived at by the court below, then there is no need to get into section 83 at all.  But can I say one or two things briefly about section 83.  It appears to us, with respect, that by different means admittedly the learned President and the authors of the joint judgment really get to the same result but by different reasoning.  We can see that the joint judgment seems to reason from a premise that what is in expectation insofar as section 83 is concerned are joint trials or trials where the admission of another party is already in evidence.

The learned President takes issue with that and sees no reason why that should be so.  Admittedly, there are different approaches to the definition to be given to the term “the evidence”, or the two words “the evidence”, insofar as it appears in section 83(2), (3) and (4)(b) of the Evidence Act.  But their Honours, in the joint judgment at paragraph 82, which is at application book 105, there is one reason why they would, in essence, get to the same endpoint as the President.  One finds at, midway through to about two‑thirds of the way down that paragraph, where their Honours say:

Moreover, as Priest JA said in Power v The Queen, one of the purposes of s 83(1) is to enable party A to make use of party B’s admission.  In the present case, as counsel for the applicants properly conceded, neither applicant could ‘make use’ of the other’s ‘admissions’.  Given the limited scope of the matters in issue, they were of no assistance at all.

So whether it is by reference to one of the purposes of section 83 or by reference to a more confined definition, as the learned President would have it, of the terms, terminology, “the evidence”, and I will not rehearse their Honours’ reasons, or his Honour the President’s reasons, I should say, they are not open or easy to be read, the same result is reached.  That is unsurprising, it is submitted, with respect, when regard is had to the fact that in the other party’s case such self‑serving material, as was recognised by the Law Reform Commission, I think at page 425 at the relevant report, is unlikely to bear the stamp of reliability, and in circumstances where, as was submitted below, the relationship of fairness that inheres in the connection between the prosecuting authority and the accused, which gives rise to a need to broaden the scope, as we find in section 81, subsection (2) does not arise.

So it would be a very curious interpretation of the section that would have…..section 83 that would do the work that our friends say it would do, and it could be perceived rather like the tail wagging the dog, that is to say, the admissions themselves are of no interest, it was the self‑serving material that was to be relied upon.

BELL J:   Yes.

MR BOYCE:  Now, I am about to finish, your Honours, and I know I have got ‑ ‑ ‑ 

BELL J:   You have the red light, Mr Boyce.

MR BOYCE:   Very well, I will just ‑ ‑ ‑ 

BELL J:   Unless there is some further matter that is of significance.

MR BOYCE:   I was just going to say on the proviso, our friend’s submission about the…..or the lack of, insofar as concoction is concerned, we do not find that finding in the judgment of the court below, the evidence

as to that, and insofar as there is no explanation in those - and really what the Court of Appeal has done is said, look, in line with - in Baini, I think, it was held that - this is at, I think at paragraph 481, page - said that:

an error which possibly affected the result of the trial –

was encompassed within the expression “substantial miscarriage of justice” and obviously enough, logically, an error that could not have had that effect could not constitute a substantial miscarriage of justice, and that is, in effect, what the joint judgment concluded, what her Honour concluded ‑ ‑ ‑ 

BELL J:   Yes.

MR BOYCE:   ‑ ‑ ‑ and there is no reason to doubt the correctness of that.  Those are my submissions.

BELL J:   Thank you, Mr Boyce.  Mr Holdenson, anything in reply. 

MR HOLDENSON:   Yes, your Honour, there are five short points.  The first point is this.  Mr Boyce made some submissions by reference to pages 47 and 48 of the application book, that is, Mr Boyce placed some submissions upon an extract within the learned trial judge’s directions to the jury, and in that regard Mr Boyce relied upon pages 47 and 48.  But what Mr Boyce did in relying upon those passages disregarded the benefit of the mutual corroboration which occurs where an accused can get to rely upon not just his own out‑of‑court statement but upon an additional or further out‑of‑court statement made contemporaneously and independently and to the same effect. 

The second point, what Mr Boyce did in dealing with and commencing to deal with paragraph definition of “admission”, the paragraph which reads:

adverse to the person’s interests in the outcome of the proceeding - 

took what might be described as a broad brush or global approach to the statement made insofar as Abernethy is concerned Hawkins.  In that regard, Mr Boyce did that which is not permitted by reason of what this Court held in Sio v The Queen (2016) 259 CLR 47 where, in the context of section 65(2) of the Act, the Court held that a record of interview, same thing a statement, is to be looked at representation by representation, that being - and this is the third point - entirely in accordance with the manner in which the learned trial judge in this case directed the jury as is apparent from page 14 of the application book, page 14 at lines 14 to 18 where the judge directed the jury that you can accept everything that a particular

witness has said or you can reject everything that a particular witness has said, or you can accept part and reject part.

The fourth point is this, very much with respect to Mr Boyce’s submissions concerning paragraph (b) of the definition of “admission”.  Where an accused does not dispute something – where an accused does not put something in issue, that does not mean that that issue falls away and is wholly withdrawn from the jury’s consideration.  For example, by reference to the recent decision of Nguyen, in order to convict, the jury still had to find that Nguyen was present and threw the two bottles of beer at the two victims. 

The fifth point is this.  If the judgment below stands with respect to the word “admission” in sections 81 and 83, then if we had a trial for murder where the accused in his record of interview had said “I had a gun, I pointed the gun at the victim, I squeezed the trigger, the victim was hit with the bullet and the victim fell to the ground and it was apparent that he was dead”, and then goes on to say in the record of interview, “What I did, I did in order to save my life because that man was coming at me with a very large knife.  He was attempting to stab me with it and had I not done what I did, I would have been stabbed in the heart”. 

Now, if what the court below said is correct concerning these provisions then if at that trial of that accused for murder he accepts how it was that he was present and had a gun and squeezed the trigger and caused the death of the deceased and confined his defence in that trial to self‑defence, then the consequences are as follows.

BELL J:   I think we have the point, Mr Holdenson. 

MR HOLDENSON:   That is the point.  There is no more point.

BELL J:   We have it.  Thank you, Mr Holdenson.  Mr Carr, anything in reply?

MR CARR:   Yes, if I may, very briefly.  If I could pick up on something that Mr Boyce said about the final four lines at page 105 of the application book.  My learned friend, Mr Boyce, took your Honours to those last four lines of page 105 and over the page and it seems to me, perhaps I misunderstood but it seems to me that what was being submitted to this Court is that those lines should be interpreted as, and correctly, imposing a purposive test on section 83, that is, it seemed to me, perhaps wrongly, that what my learned friend, Mr Boyce, was submitting was that section 3 was correctly treated by the joint judgment as somehow only applicable if the subjective intention of the tendering party was to make use of the inculpatory cautions and not the exculpatory cautions.

Obviously enough, that too flies in the face of the approach endorsed by this Court in Nguyen.  Moreover, there is nothing in section 83 that would permit an interpretation that depended upon the subjective intention of the third party.  It is significant to have regard to the broader structure of the uniform evidence legislation in considering this sort of a submission because of course the Evidence Act does contain some rules that depend upon how the tendering party intends to rely on tendered evidence. 

Most obviously, for example, sections 97 and 98 dealing with tendency and coincidence evidence provide that particular evidence “is not admissible to prove”.  So there are rules in the Evidence Act that depend upon the tendering party’s purpose.  Section 83 is not one of those and its structure provides no justification for such an approach.

Next, can I correct a matter that was, as I understood, put by Mr Boyce based upon, most conveniently, for example, the very last page of the application book, 191, line 29:

The Accused makes the admissions sought –

To the extent that it was submitted that there were formal admissions made and to the extent that that submission is reliant upon those admissions sought, the admissions sought in the prosecution opening to which that document is responsive were in these terms:  it is considered that the following ought to be admitted as evidence without further proof, and then a whole series of documents, including the statement of Mr Abernethy were sought to be admitted without proof and, indeed, that admission, such as….was made. 

Those documents were tendered without the form, without further proof, but that did not embody any formal admission as to presence and, for the reasons outlined by Mr Holdenson already, all other issues remained to be proven by the Crown.

BELL J:   Yes, thank you, Mr Carr.

In our opinion, these applications are not a suitable vehicle in which to consider the operation of section 83 of the Evidence Act in the trial of co‑accused in respect of criminal offences, in circumstances in which the Court of Appeal was satisfied that the rejection of the statements of the co‑accused in the trial of each other accused did not occasion a substantial miscarriage of justice.  The applications are dismissed.

AT 12:49 PM THE MATTERS WERE CONCLUDED