Attorney-General for New South Wales v Xx

[2019] HCATrans 52

[2019] HCATrans 052

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S268 of 2018

B e t w e e n -

ATTORNEY-GENERAL FOR NEW SOUTH WALES

Applicant

and

XX

Respondent

Application for special leave to appeal

KIEFEL CJ
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 MARCH 2019, AT 9.30 AM

Copyright in the High Court of Australia

MR N.C. HUTLEY, SC:   If your Honours please, I appear with my learned friends, MS J.M. SINGLE and MS J.D. WILLIAMS, for the Attorney‑General for New South Wales.  (instructed by Crown Solicitor)

MR T.A. GAME, SC:   If the Court pleases, I appear with MS J.L. ROY for the respondent.  (instructed by Legal Aid Commission of NSW)

KIEFEL CJ:   Yes, Mr Hutley.

MR HUTLEY: As your Honours appreciate, the issue is whether the Court of Criminal Appeal correctly construed section 102(2) of the Crimes (Appeal and Review) Act 2001. It is a question of law. Issues of fact, including the admissibility of evidence do not arise. If the applicant is successful in an appeal in establishing error the Court should set aside the orders made by the Court of Criminal Appeal and remit the matter to the Court for further consideration.

On the basis of its construction, the Court of Criminal Appeal held that the Walker evidence – referring to the evidence concerning the disappearance and death of Colleen Walker – was not fresh in relation to the murder of Evelyn Greenup.  That appears at judgment 256 at application book 206.  That conclusion at judgment 256 was solely reached on the conclusion that the evidence, with minor exceptions, referred to at judgment 31 and 32, had been available prior to the trial in 2006.

KIEFEL CJ:   Am I right in thinking the Walker evidence was – the requirement that it be fresh, that it meet the statutory test, was critical to the ‑ ‑ ‑

MR HUTLEY:   Was the sole ground and therefore the – two matters were determined:  firstly, essentially that “adduced” meant tendered and the court also said “or brought forward”, and that is a point which we have adverted to; and, secondly, that that evidence was available to the prosecution, no determination being made whether it was admissible or not.  Now, the court declined to make findings about the Walker evidence in relation to the murder of Clinton Speedy on the basis that the Attorney‑General’s application was for the respondent to be tried for the three murders together - that is at judgment 262 to 288.

BELL J:   That is not in issue on this application, is it?

MR HUTLEY: No, that is not in issue on this application, your Honour. It follows that the Court of Criminal Appeal did not determine whether the Walker evidence was inadmissible in the Speedy trial or the Greenup trial, whether the Walker evidence was compelling under section 102(3) or whether it was in the interests of justice for an order to be made under section 100(1)(b). These are all issues which would have to go back to the Court of Criminal Appeal.

The Attorney’s position is that there are two possible meanings of the phrase “adduced in the proceedings” read in isolation – either that the evidence was admitted or that it was tendered but not necessarily admitted.  We submit that the Court of Criminal Appeal erred in its construction and the error emerges at judgment 225, page 197 of the application book.

The court was of the opinion that “adduced” meant tendered in relation to section 102(2)(a) and tendered or brought forward in relation to 102(2)(b), and your Honours should also in this regard see paragraphs 247 and 250. No explanation is provided as to the meaning of “brought forward” and how, if at all, it extends beyond “tendered”. If “brought forward” extends beyond “tendered” the Court of Criminal Appeal did not explain why the similar construction did not apply to 102(2)(a).

KIEFEL CJ:   Well, if the Court of Criminal Appeal is treating them as relatively synonymous ‑ ‑ ‑

MR HUTLEY:   Perhaps.

KIEFEL CJ:   ‑ ‑ ‑ are they not saying any more than “brought forward” means brought forward to the court for the purpose of tender and perhaps tender?

MR HUTLEY:   Well, that is the point – if then it means brought forward to the court, it should have the same meaning in (a), but the court does not seem to refer to it as being applicable to (a) and the “tendered” is (a).  But that is not the determinative question because the respondent, as we understand it, maintains the position is “tendered” for both.  So we say there is a crisp issue on (a) and (b) as to whether, firstly, the true construction of “adduced” in the proceedings is “admitted” or “tendered”.

The source of the words “adduced in the proceedings” comes from the United Kingdom legislation, and that is apparent, your Honours will see, from application book 160, paragraph 93 where the United Kingdom’s legislation appears.

BELL J:   In some respects, significantly, the United Kingdom legislation uses the word “new” evidence.

MR HUTLEY:   Quite.  Well, that raises the issue, and we say it is an important issue, which we have adverted to.  Because 102(2) defines “fresh evidence” we say the use of the term, in syllogistic terms as we put it, that is, what it is, to have regard to, as it were, the history of the term “fresh evidence” commits the error which this Court found in the Shin Kobe Maru Case of using, as it were, the defined term to constrain the meaning of the definition.  But this is even further, because it says at 102(2):

Evidence is fresh if –

and then there are two requirements.  We say one of the fundamental errors of the Court of Appeal was being guided by the use of the word “fresh” in addressing this question and we say that that led them into error, particularly in the context of the relevant statute which, as we have observed, uses the term “fresh evidence” at a number of points – and I can give your Honours reference – sections 17, 26, 37 and 47 – in that, at least in 27 and 47, “fresh evidence” is used with respect to Crown appeals and the courts have held - and it is not substantively defined - that that refers to the common law meaning as determined by the High Court.

So what one has here is the effect of our learned friend’s construction and the Court of Appeal’s construction is that this elaborate definition in subsection (2) is no different to the common law, yet in the very same statute they have used the term undefined and it has been held to mean the common law meaning, but here we have the somewhat elaborate definition in subsection (2) and the court has construed it to effectively be identical with the common law where we say it must be evidence that it was intended to depart from the common law.  We say that the concentration on “fresh” was a central error which suffuses the Court of Criminal Appeal’s reasoning.

BELL J:   To the extent there is any ambiguity does recourse to the extrinsic material assist you?

MR HUTLEY:   Your Honour, as with most extrinsic material, the extrinsic material at the critical point uses the very words which lie at the heart of the question of construction, that is “adduced in the proceedings”.  Now, the history we say assists us because the source of the critical phrase “adduced in the proceedings” goes back to the United Kingdom, and as I was coming to, your Honours will see that in the United Kingdom – and your Honours will see this from application book 167, paragraphs 112 and 113, the United Kingdom has held that the words “adduced in the proceedings” mean admitted in the proceedings.  In that regard, one can see that that is the ordinary meaning ‑ ‑ ‑

FIRE ALARM WARNING

KIEFEL CJ:   We will proceed until we are interrupted again.

MR HUTLEY:   Your Honours, at judgment 233 on page 200 of the application book their Honours refer to the observations by her Honour Justice Simpson in Zhang that:

the ordinary meaning of the word “adduced” was “admitted”, “given” –

So we submit there were powerful reasons for the conclusion that the true construction was “admitted”.  The driving consideration against it was the reference to “fresh” and we say that is an error.

FIRE ALARM WARNING

KIEFEL CJ:   Yes, Mr Hutley.

MR HUTLEY:   That error appears from paragraph 241 where their Honours reject that construction ‑ that is application book 202 ‑ where the point is made by the court that the Attorney‑General failed:

to grapple with the use of the word “new” –

et cetera, in criticising the submission that “adduced” meant admitted.  We say that that reflected error.  It was something that one did not have to grapple with because of the form of the legislation.  Secondly, your Honours, the point was made at 243 in relation to that.  The concern was that section 102(4), which your Honours will find at application book 150 to 151, would have no work to do if “admitted” was the case. 

Now, subsection (4) on the available evidence construction has no work to do on the Court of Criminal Appeal’s construction because if the evidence is “available” it is available, or should have been available, whether it was admissible or not.  What we say the better view of subsection (4) was is it was there to quiet any Coco v The Queen argument which might be brought forward, and has been brought forward, and it would inevitably be brought forward with this sort of legislation, that it should not be construed to render admissible evidence that which was inadmissible.

FIRE ALARM WARNING

MR HUTLEY:   So subsection (4) is, we submit, not determinative of any construction because on all constructions it has problems as to its utility - what we say is best viewed as making clear the point which we just advanced.

BELL J:   Mr Hutley, to go back to the extrinsic material, if it were necessary or helpful to have recourse to it, one finds in the report of the Model Officers Committee a discussion of the United Kingdom legislation, a clear expression of a view that in the United Kingdom a legislative choice had been made to impose a lower threshold by reference to new evidence as distinct from fresh evidence and a recommendation by the Committee against that and then one finds legislation which uses the word “fresh”.

MR HUTLEY:   That is the difficulty, your Honour.  The difficulty is if the construction which is adopted by the Court of Appeal is the common law but they have deliberately gone outside the language ‑ ‑ ‑

BELL J:   Yes, I understand.

MR HUTLEY:   Therefore, to constrain the words by reference to the common law where there was a clear choice to be made by just using the word “fresh” evidence, as used elsewhere in the Act, precludes that, and those, as it were, external materials, as your Honour goes to the second reading speech which is perhaps the more immediate, they merely use the word “adduced” and leave it in the air.  But even if it is tendered then one moves to the second question of construction, namely ‑ ‑ ‑

FIRE ALARM WARNING

MR HUTLEY:   Then one moves to the second question – as your Honours appreciate – is could not have been adduced in those proceedings with the exercise of reasonable diligence.  Now, if that just means, as the Court of Appeal says, available, thus irrespective of how utterly inadmissible the evidence was at the relevant time, we say that is evidence which could not have been adduced in those proceedings with the exercise of reasonable diligence being tendered, that is, a Crown acting responsibly with respect to admissible evidence could not with reasonable diligence have tendered it.  He or she would have been in breach of their duties to the court in perhaps weight and in that regard.

BELL J:   It is a very strained construction of subsection (2)(b).  The concept of whether or not evidence might have been adduced with reasonable diligence itself has something of a history.  The notion that it is referable to the responsible decision of the prosecutor not to seek to have admitted evidence which is plainly in the exercise of professional judgment inadmissible is a strained construction.

MR HUTLEY:   Your Honour, with respect, if the word is available, could have been available, there is no point to subsection (2)(a) because availability will always be determined by (b).  So (a) is utterly superfluous if that is the case.  What we submit is the construction of the two is – and I will assume now “tender” is the word rather than “admitted” – that the policy is that the defendant, respondent here, people in the respondent’s position, should not be ‑ ‑ ‑

FIRE ALARM WARNING

KIEFEL CJ:   Mr Hutley, would you prefer to continue or stand down until the fire alarm is over?  I know it is not interrupting your focus ‑ ‑ ‑

MR HUTLEY:   If your Honours are happy for me to continue, I will continue, rather than ‑ ‑ ‑

KIEFEL CJ:   Yes, thank you.

MR HUTLEY:   Your Honours, to continue, what we say lies behind the choice of (a) and (b) is this, that an individual is not to be exposed to the risk of the admission of evidence that is tendered against them, whether tendered successfully or unsuccessfully, or the risk which, with the exercise of reasonable diligence, he or she should have been exposed to.  Thus, that explains – gives meaning to both (a) and (b) which, in the Court of Criminal Appeal’s construction evaporates and all that one needed to use was the word “fresh” evidence” and the result would be identical to that which we find.

KIEFEL CJ:   Could I just clarify something, Mr Hutley?  You are talking about the words “tender” and “admitted”.  Are you drawing any distinction between them?

MR HUTLEY:   The first question, your Honour, is whether “tender” is ‑ ‑ ‑

FIRE ALARM WARNING

MR HUTLEY:   If “adduced in the proceeding” means admitted, then on any version the Court of Appeal erred, and one does not have to get to (b).  The evidence simply was not admitted, nor could be admitted.  The Court of Appeal erred.  If it means tendered, the question then becomes could evidence be tendered in those proceedings with the exercise of reasonable diligence if it is clearly inadmissible.  That, in other words is, if it is just a physical possibility to, as it were, hand it across the Bar table is the test ‑ ‑ ‑

FIRE ALARM WARNING

MR HUTLEY:   What we are putting, Chief Justice, is if that is the meaning then there is nothing – this elaborate structure in (2) was utterly otiose.

KIEFEL CJ:   The reason I am asking for the point of clarification is that “tender” – and I think this is put against you – the respondent points to the fact that the notion of the process leading up to tender is really a party‑orientated process where the evidence becomes or is made available or sought by the party, the party brings it before the court and at that point can choose tender or not tender ‑ ‑ ‑

MR HUTLEY:   I accept that.

KIEFEL CJ:   Then it is the court that…..admission are two distinct processes in the levels which follow evidence through to reception by the court.

MR HUTLEY:   I accept that, your Honour, but when I refer to “adduced” meaning admitted, that is obviously a composite phrase “tendered and admitted” because ‑ ‑ ‑

KIEFEL CJ:   It is not usually the way in which it is understood, is it?

MR HUTLEY:   Usually one can say “I adduced evidence in these proceedings to the following effect” and it generally means “I got it in”.  As Justice Simpson observed ‑ ‑ ‑

KIEFEL CJ:   It means the tender was successful.

MR HUTLEY:   Quite.

KIEFEL CJ:   But strictly speaking it refers to the tender and the processes are distinct then.  It is party tender, court reception, admission.

MR HUTLEY:   Your Honour, we have referred in our footnotes on a number of occasions where this august body has used the word “adduced” to mean admitted.

KIEFEL CJ:   I think that might be shorthand, though, is it not, for a successful tender?

MR HUTLEY:   Precisely.

KIEFEL CJ:   …..adduced means it was brought forward for the court and it was accepted.

MR HUTLEY:   Your Honour, to say that one accepts that it means admitted, as they found in the United Kingdom “adduced” meant admitted, really carries with it the concept of “adduced and was admitted”.  So it is not – the only reason one used shorthand “admitted” is to make clear that one is dealing with successful introduction of the evidence. 

KIEFEL CJ:   …..if you read “adduced” as you would say to also comprehend “admitted”, you would have to read section 102(2)(b) to say it could not have been admitted in those proceedings with the exercise of reasonable diligence.

MR HUTLEY:   Quite.

KIEFEL CJ:   That is to comprehend the court’s function as well as the party’s function.

MR HUTLEY:   Your Honour, let it be assumed there was admissible evidence which could have been sought out and found, but was not, and therefore it could have been successfully adduced, then that material would not be fresh evidence.  There would be an inquiry into whether, with the exercise of reasonable diligence, you could have collected the material, obtained the material and procured its admission.  So there would be a composite inquiry of that variety.

Any other construction such as our learned friend’s leads to very strange and we say most curious results.  For example, obviously inadmissible evidence which could not with reasonable diligence have been available for the inevitable decision not to adduce it can be fresh because whereas the same evidence if obtained wholly unnecessarily is not fresh which we say is a most peculiar and perverse result.  So, in other words ‑ ‑ ‑

KIEFEL CJ:   Would you agree more generally, Mr Hutley, that the provisions are directed obviously to a person who has been acquitted and it is sought to have that person retried for a life sentence offence?

MR HUTLEY:   Yes, your Honour.

KIEFEL CJ:   But more generally the provisions are directed to the prosecution and the case that they originally brought and what they are now seeking – the basis for which they are now seeking a retrial.  So it is looking at the prosecution and the evidence which could have been brought forward by the prosecution at an earlier time.

MR HUTLEY:   I agree, your Honour, but the heart of it is the “could”.  It is the “could with the exercise of reasonable diligence” and with clearly admissible evidence you have you cannot bring that forward in any sensible way into the trial.

BELL J:   But in that context the words “with the exercise of reasonable diligence” in subsection (b) are otiose.  The question of whether evidence is admissible or not is answered by a single correct answer, either it is or it is not.  So if the provision bears the meaning “admitted” as opposed to “adduced” in the sense of tendered or brought before the court, it is very difficult to give work to the balance of subsection (b).

MR HUTLEY:   But, your Honour, (b) was designed not to just cover inadmissible evidence, (b) was designed to cover obviously admissible evidence and evidence which was not then available to you in point of fact.  So one cannot, with respect – one should not, with respect, constrain the meaning of subsection (b) by reference to the particular circumstance thrown up here.  The important point is this legislation was obviously deliberately – and subsection (4) makes it pellucidly clear – designed to deal with inadmissible evidence at the time of trial.

BELL J:   I am sorry, which section makes that pellucidly clear?

MR HUTLEY:   Subsection (4), your Honour.  Subsection (4) says the mere fact that evidence was inadmissible at the time of the first trial does not preclude it.  So that is a design to make clear – and we say to overcome what would be the inevitable Coco v The Queen argument, absent of it, to make pellucidly clear that was design.  We say that supports the construction that we advise ‑ ‑ ‑

BELL J:   I understand that.

MR HUTLEY:   Yes, your Honour sees.  Just to finalise, we say the Attorney’s construction properly gives work to both 102(a) and (b) because on either of the constructions “adduced” meaning tendered or received, the policy underlying the constructions is that there cannot be an order allowing a retrial when an accused has been or should have been exposed to either the fact of or the risk of admission of evidence, either in point of fact or if reasonable diligence has been exercised.  The construction arrived at at the Court of Appeal renders all the words after the word “fresh” completely otiose because you did not need the definition at all.  If the Court pleases, those are our submissions.

KIEFEL CJ:   Thank you, Mr Hutley.  Mr Game.

MR GAME:   If the Court pleases.  First, your Honours, could I take you back to application book page 161.  Now, on the left‑hand side – sorry, on page 160 is the UK provision as passed.  If you go to paragraph 94 you will see that which it was in the form of a bill and subsection (2) said:

Evidence is new if it was not available or known to an officer or prosecutor –

So they have taken that out and that is at the heart of the court’s reasoning about the subject when you go to that passage at 202 that Mr Hutley took you to.  One also sees the irrelevancy of the fact that “evidence would have been admissible in earlier proceedings” in subsection (5) and one sees a version which I will come to shortly.  So that passage I was talking about at 202, paragraph 241 says, last sentence, the thing that I was just saying:

The history shows that the original form of the UK Bill, which provided that evidence was “new” if it was “not available or known to an officer or prosecutor” –

So, if one comes back to the provision - and a place to find the provision is at page 229 - first of all we say the construction of this provision is reasonably straightforward.  The content of it relates to specific identified evidence said to be fresh and an example would be fresh evidence of DNA or something of that kind that comes forward.  It is about the obtaining of material.

The common law is of considerable significance here because the common law is about convicted persons.  This is creating a provision that, in effect, is the reverse of that which is to put the prosecution in a like position in an exceptional case.  So when one comes to the terms in (2)(a) and (b) both have to be required – both are required to be satisfied. 

There is an irony in the Crown’s submission about this because on their fallback position if evidence was sought to be tendered but failed it would be excluded because of (a) and yet it would succeed because of (b) and that is one of the – that is a kind of central inconsistency in the point that was pointed out by the Court of Criminal Appeal and…..but (a) and (b) accumulatively.

But if one reads them compendiously for a moment, one sees the sense of it.  So, that if it was not and could not have been adduced in those proceedings with the exercise of reasonable diligence, one sees the sense of it which is the availability of the material to be utilised in the case which is why what the court says at paragraph 225 is entirely correct.  It is not a changed meaning, it is a changed context in (b) because you are talking about whether it could have been utilised, whether it is to be deployed. 

That is the kind of meaning of it and it feeds into the words “with the exercise of reasonable diligence” which are words that come from cases such as Mickelberg and it matters not whether or not that is the common law test.  That is a phrase that is about the obtaining of material but we say the Court is actually correct at 224 on page 197.  We actually say that the Crown falls into error by attempting to sweep aside the context within which this was introduced, namely, the background of the common law test for fresh evidence. 

So, we see that at 224 and that test is similar to Mickelberg.  So, we say that – also what we say about “adduced” is this – not adduced - it is a condition of freshness, it is not the thing that is describing the freshness.  One can see that - if you take “adduced” to mean admitted, well, of course, it is not fresh if it has been admitted into evidence but that is not telling you anything about whether it is fresh.  So, although it says “evidence is fresh if it was not adduced” that is a condition.  It does not get you to the heart of the thing which is about the availability to use and that is what (b) is about. 

That is why the court uses the words “or ‘brought forward’” in 225 because you are talking about the position of the prosecutor.  You are not talking about, in the first part of the sentence, the position of the judge and in the second part of the sentence the position of the prosecutor.  So, our construction is quite coherent.

KIEFEL CJ:   What do you say to the proposition put forward that there have been statements made in judgments which suggest that the word “adduce” comprehends admission?

MR GAME:   It can comprehend admission but one of the examples used is, in fact, Justice Simpson’s use of “adduced” in respect of section 101 of the Evidence Act which is relevant to this because this is all about coincidence and, in that sense, “adduced” is said to be reference to tender, not admitted.  So, it depends on the context.  It could not mean admitted because of the content of subsection (b).

KIEFEL CJ:   I am sorry, just to be clear – are you saying Justice Simpson was referring to “adduced” in the context of a tender rather than the Court’s admission of it?

MR GAME:   Yes, your Honour.

KIEFEL CJ:   So, tender at the end of the process where the prosecutor brings it forward.

MR GAME:   Yes, that is right.  In fact – there is a passage in the judgment where that very proposition is referred to – we will pick it up in a moment.  But, sorry, we did not make too much of that but that is such a context and it is relevant because of the way in which sections 97 and 98 would work on this.  As I said, “adduced” is ‑ sorry, if I could just come back to that.  What it is talking about – “it could not have been adduced” - is that putting the prosecutor in the position of being able to deploy it in the case, that is not changing the meaning of the word between (a) and (b) but it is giving full content to the idea of “with the exercise of reasonable diligence”. 

Then, subsection (4) – now, our opponents are saying it is fresh because a view might be taken it was inadmissible about which there is, in fact, no evidence but that is the position that they put.  What one draws from subsection (4) is that it may not be fresh even if it would not have been admissible and that is essential to the meaning of subsection (4).  So we, as the Court of Criminal Appeal said, and they said it at paragraph 243 at page 203 that 102(4) is meaningful and it is meaningful in favour of the propositions that we are putting, namely, when one is not addressing oneself to the question of admissibility in this instance.  You put admissibility to one side.  “Compelling” is where you look at the quality of the evidence but at the point of determining whether it is fresh, you are not looking at admissibility, you are looking at about the availability of material to use in the case and that is a natural and straightforward meaning of the provisions.

One is thrown into the complexity of this case by virtue of the proposition that, in effect, the Walker evidence is being sought to be deployed in respect of the Greenup case when the Greenup case came two years after the last inquest in relation to Walker which was – so, it is many, many years ago. 

The material - specific pieces of evidence were known for many years but the last moment in which it could possibly be said that the material was not available to be deployed was 2004 at the end of the second inquest in the Walker case.  The Greenup trial was in 2006.  Some of the Walker evidence was sought to be deployed which was some tendency evidence and the court referred to that as well and some of the Speedy evidence was sought to be deployed.  So, this elaborate construction of the provision is really brought about by the position in which the prosecution find themselves with respect to the Greenup trial.  So, the passage in respect of Zhang was at paragraph 233 - yes, it is what we say it is, at 233. 

So, that is what we say about – what I would just lastly like to take your Honours to is a passage in the judgment where the court deals with what is described as the fallback position.  I take you there because a very large part of the argument has been referred to - what has been referred to as the fallback position at page 205, paragraph 249.  Just before I do that if you go back to 225 on 197, there is a sentence that is quite important there.  Towards the end of that paragraph, it says:

Thus, evidence available to the police or prosecutor but not tendered due to a view as to its likely admissibility, whether correct or otherwise, would not be evidence –

So the admissibility is not a part of that exercise.  So, we come to the fallback position.  What is being sought to be done is to use the word “tendered” to drive the meaning of the words “with the exercise of reasonable diligence”.  So that a decision about admissibility or tendering it becomes something that could not be obtained with the exercise of reasonable diligence because of the use of the word “tender”, but that does not make sense. 

We see that explained at 249 and following but 250 and 251 are plain enough - but 252 is the point I was making earlier that may have sounded a bit obtuse but that is the point I was making.  If the prosecution had tendered it but failed, they would be out of court on (a) but if they sat around thinking about it and decided not to tender it they would succeed on (b) which does not make sense.

Then 253 is correct.  It ignores 102(4) and it also ignores entirely and absolutely the words “with the exercise of reasonable diligence”.  What you are, in fact, being asked to do is to construe these provisions as if they were the same as the UK provisions, that is to say “new” with no use at all of the words “adduced” or ‑ no work to do of subsection (b) of section (2).  So, it then it is – as your Honours appreciate, if you go to paragraph 256, that is the point I was making.  It was all fresh – none of it was fresh because it was all known about.  If you go back to paragraphs 54 and 31 and I will just take you to those ‑ ‑ ‑

GAGELER J:   What paragraphs?

MR GAME:   Paragraph 31 – yes, 31 and 54 are the two passages referred to.  Actually 54 is a useful one.  By the time you get to 2004, after the inquest, it is all known available, so there is no suggestion that anybody actually did make this decision that is being referred to as if somebody decided it was inadmissible and the proposition that is put by the Crown in their submissions - and I will just take you to it - at paragraph 21 is that even on their fallback there is a kind of double step to it that they pick up in 21.  They try to say, well, the Walker evidence would have been inadmissible because the Speedy evidence would have been inadmissible.  That is the extent to which they are driven to succeed even on their own argument.  We say that is several steps too far. 

Likewise at 46, which is an essential part of their argument, they assert that it was plainly inadmissible.  But that is just a contention.  As we say that question is entirely beside the point when you are looking at the

question under subsection (2)(b).  It may be quite important when you get to the compelling nature of the – whether the evidence is compelling.  Sorry – what I am saying is there is no evidence that a prosecutor did turn their minds to the question of admissibility.  That is what I am saying there is no evidence of.  So, that is our response.

KIEFEL CJ:   Any submissions in reply, Mr Hutley?

MR HUTLEY:   Very shortly, your Honour.  As to the dealing with the particulars – of the particular case as we observed the Court of Criminal Appeal did not consider any of those matters and so they are irrelevant with respect to this application.

BELL J:   What about the anomaly that Mr Game relies on at paragraph 252?

MR HUTLEY:   Yes, your Honour, that is where we say if you look at the policy which – I explained the policy.  The object of this legislation is to qualify the double jeopardy.  We say one way of viewing it is that the accused – the respondent here should not be subject to that risk if they have been subjected, in fact, to the risk of evidence being admitted by its tender.

So, in other words one is – and, therefore, that anomaly goes but as we point out on our learned friend’s construction another anomaly has come and I gave the example to your Honours which our learned friends do not seem to challenge, namely, evidence which is unavailable, clearly inadmissible is available to be tendered, evidence which, if it had become available no one would, in their right mind, ever tender it or deploy it because of its inadmissibility but it ceases to be fresh solely because it was available in the sense of with reasonable diligence one could obtain it, even though, for example, you may have known it was utterly inadmissible. 

So, what one has here is a policy decision to abrogate the rule against double jeopardy.  We say (a) and (b) are there in a sensible way - our construction is you will only be abrogated if either the accused – sorry, the defendant was at risk, in fact, by tendering - I am dealing with tendering here now - or should have been at risk by tendering with the exercise of reasonable diligence because you should not be, as it were, put at risk in that sense twice. 

That risk necessarily brings with it a proper judgment to actually advancing material, as there will be judgments at every criminal trial - judgments as to whether to seek material.  If you judge not to seek material because it is clearly inadmissible our learned friends would say - would be driven to the point, well, that may be able to be advanced in the change of the law but if you do it and you get it, even though it is clearly inadmissible

and you will not use it at all, for some reason that is not to be treated as fresh. 

So, the court pointed to an anomaly without analysing what we say was the heart of the structure of the legislation.  My learned friend effectively conceded, because he did not advert to it, is this whole elaborate construction is no more than fresh evidence, that is the substantive common law.  It is Mickelberg, although not referred to.  One cannot change a definition into a condition by saying so.  It says “fresh if” and that “if” is conditional.  If that is not met it is not fresh and we say if it is met it is fresh because it does not say it will be fresh unless it meets a condition. 

It says “fresh if” and our learned friends, in effect, have to say that the relevant act where it uses fresh evidence everywhere else in the common law Mickelberg sense has exactly the same meaning in section 102 despite the elaborate language to which it has gone and we say that is contrary to all usual principles of construction including the reliance upon the common law meaning when you have this form of definition. 

So, the conclusion depends upon, with respect to the Court of Criminal Appeal, heterodox approach to the question of construction of this legislation.  I think other than that, I think our learned friends – we are at issue with our learned friends.

KIEFEL CJ:   The Court will adjourn to consider the course that it will take.

AT 10.19 PM SHORT ADJOURNMENT

UPON RESUMING AT 10.23 AM:

KIEFEL CJ:   The Attorney‑General for New South Wales seeks leave to appeal to this Court from the decision of the Court of Criminal Appeal. Section 100(1) of the Crimes (Appeal and Review) Act 2001 (NSW) relevantly provides that the Court of Criminal Appeal may order an acquitted person to be retried for a life sentence offence if satisfied that there is fresh and compelling evidence against the acquitted person in relation to the offence.

The respondent, XX, was acquitted of the murders of Clinton Speedy and Evelyn Greenup.  He did not stand trial for the murder of Colleen Walker.  The Court of Criminal Appeal dismissed the Attorney‑General’s application for orders quashing the respondent’s acquittal to enable a retrial of them jointly with an indictment for the murder of Ms Walker.

For a grant of special leave to be made the Attorney‑General needs to show that the Court of Criminal Appeal was wrong. It was the Attorney‑General’s contention in the Court of Criminal Appeal that four categories of evidence qualified as fresh evidence for the purpose of section 100(1). Evidence relating to the disappearance of Ms Walker was the critical evidence. It was argued if a retrial was held it could assist in proving that the respondent was guilty of the three murders. That issue is not before the Court today.

The sole issue before this Court on the application for special leave is whether the evidence and, in particular, the Walker evidence, was fresh within the meaning of the statute.  The Crimes (Appeal and Review) Act says that fresh evidence means evidence that could not have been adduced in the proceedings in which the person was acquitted with the exercise of reasonable diligence.  When a party wishes the evidence of witnesses to be taken into account in a trial it puts that evidence before the Court and if the Court considers it qualifies as legally admissible evidence it receives or admits that evidence into evidence.  There are, in effect, two stages.

After detailed consideration of the arguments as to whether “adduced” refers to the first or to the second stage, the Court of Criminal Appeal held that it refers to the first.  Evidence which is available to a party is not fresh evidence within the meaning of section 100.  That is the way the term “adduced” is generally understood in the law and it is what it means in the statutory context of section 100, the Court of Criminal Appeal held.

We can find no reason to doubt the correctness of the decision of the Court of Criminal Appeal.  It follows that there is no basis for the grant of special leave and the application must be refused.  The order of the Court is that the application for special leave be refused. 

The Court will adjourn to reconstitute.

AT 10.27 AM THE MATTER WAS CONCLUDED