Hillen v The King - [2023] NTCCA 9

CITATION:Hillen v The King [2023] NTCCA 9
PARTIES:HILLEN, Damian Allan Ronald

v
THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 3 of 2023 (22019536)
DELIVERED:  15 December 2023

HEARING DATE: 30 May 2023
JUDGMENT OF: Grant CJ, Barr & Brownhill JJ

CATCHWORDS:

CRIME – Appeals – Appeal against conviction – Wrong decision on a question of law
Admissibility of evidence – Whether agreed facts from co-offender’s sentencing proceedings received in error – Conduct in pleading guilty on agreed facts a previous representation admissible as credibility evidence and as proof of the facts asserted – Draft version of agreed facts adopted by co-offender’s signature – Draft version relevant to: (a) whether plea could not be characterised as a ‘plea of convenience’; and (b) whether admissions by co-offender extended to applicant’s conduct – Document subject to legal professional privilege and potentially inadmissible – Any error in admitting the document did not result in substantial miscarriage of justice –Application for leave to appeal refused.
CRIME – Appeals – Appeal against conviction – Wrong decision on a question of law
Whether miscarriage of justice resulted from the failure of the Crown to identify the alternative pathways to a finding of guilt – Whether defence unaware of case it had to meet before closing address – Alternative pathway identified by the Crown before final addresses – Defence counsel aware of alternative offence and open to recall applicant to give evidence on question – No tactical disadvantage or other prejudice – Application for leave to appeal refused.
CRIME – Appeals – Appeal against conviction – Unreasonable verdict
Whether verdict unreasonable or unsupported by the evidence – Not reasonably possible that co-offender’s evidence concerning lack of agreement and intention was true – Not satisfied that the jury must have entertained a doubt about the appellant’s guilt – Application for leave to appeal refused.
CRIME – Appeals – Appeal against conviction – Miscarriage of justice
Whether admission of evidence of another prisoner two fires in his cell at or about the same time caused miscarriage of justice – Whether evidence had no probative value raised danger of unfair prejudice – Defence counsel did not object to admission of the evidence or seek any direction about it – Risk immaterial – Application for leave to appeal refused.
Criminal Code Act 1983 (NT), s 43AA, s 43AH, s 43AI, s 43AK, s 43BG,s 243, s 410, s 411, s 429
Evidence (National Uniform Legislation) Act 2011 (NT), s 38, s 59, s 60, s 63, s 101A, s 102, s 106, s 119, s 137

Ancutav The Queen (1990) 49 A Crim R 307, Bou-Elias v The Queen (No 1) [2012] VSCA 61, Bruce v Williams (1989) 46 A Crim R 122, Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108, Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, Director of Public Prosecutions (Vic) v Bourbaud [2011] VSC 103, French v Bremner [2019] NSWSC 1033, Libke v The Queen (2007) 230 CLR 599, Lynch v The Queen [2020] NTCCA 6, M v The Queen (1994) 181 CLR 487, Nichia Corporation v Arrow Electronics Australia Pty Ltd (No 3) [2016] FCA 466, Pell v The Queen (2020) 268 CLR 123, Power v The Queen (2014) 43 VR 261, The Queen v Gallagher [1986] VR 219, The Queen v Le (2002) 54 NSWLR 474, The Queen v Lisoff [1999] NSWCCA 364, The Queen v Solomon [1978] 1 ACR 242, referred to.
REPRESENTATION:
Counsel:
Applicant:M Thomas
Respondent:  V Engel SC with J Moore
Solicitors:
Applicant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  56

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Hillen v The King [2023] NTCCA 9

CA 3 of 2023 (22019536)
BETWEEN:
DAMIAN ALLAN RONALD HILLEN

Applicant

AND:

THE KING

Respondent

CORAM: GRANT CJ, BARR & BROWNHILL JJ
REASONS FOR JUDGMENT
(Delivered 15 December 2023)
THE COURT:

On 12 July 2021, the applicant pleaded not guilty to a charge on indictment alleging that on 6 June 2020 he used fire to intentionally or recklessly cause damage to a building, namely a cell in the Darwin Correctional Centre (‘DCC’), contrary to s 243(1) of the Criminal Code 1983 (NT) (‘the Criminal Code’).
The matter proceeded to trial before a jury and, on 16 July 2021, the jury returned a verdict of guilty. On 10 August 2021, the applicant was sentenced to two years and six months’ imprisonment commencing on 5 November 2020. A non-parole period of one year and three months was fixed.
The applicant sought leave to appeal against the finding of guilt under s 410(b) of the Criminal Code and an extension of time to file the application for leave to appeal. The application for leave to appeal was filed some 18 months outside of the time limited by s 417 of the Criminal Code. The affidavit in support of the application for the extension of time deposed that on 20 July 2021 the Northern Territory Legal Aid Commission granted legal aid to investigate the merits of an appeal, that on 29 July 2021 a ‘Barr letter’[3] was sent to the Director of Public Prosecutions notifying the applicant’s intention to file an appeal, and that the lengthy delay in making the applications was partly the result of ill-health on the part of counsel for the applicant from July 2022. The Director's response was that the delay between July 2022 and January 2023 was explained by counsel’s ill-health, but the delay between July 2021 and July 2022 was unexplained. The respondent did not point to any prejudice as a consequence of the delay, save the impact on the public interest in the avoidance of delay and the finality of litigation.
The applications for leave to appeal and for an extension of time were refused by a single Judge pursuant to s 429(1) of the Criminal Code, and the applicant sought that the applications be heard by three Judges of the Court pursuant to s 429(2). The applicant’s sentence of imprisonment ended on 4 May 2023, prior to the hearing of the applications by three Judges constituting the Court of Criminal Appeal on 30 May 2023.
By an affidavit in support of the grant of leave to appeal, the applicant raises three grounds of appeal, with a further ground of appeal raised in the applicant’s written submissions. The proposed grounds of appeal are:
(a)Ground 1: The verdict was unreasonable or cannot be supported on the evidence. The ground referred to the evidence from the applicant’s co-accused (‘Baxter’), who occupied the cell that was damaged by fire, and two documents headed ‘Agreed Facts’ (‘Exhibit P1’ and ‘Exhibit P2’) relating to Baxter’s plea of guilty to the charge of arson and his sentencing proceedings. Ground 1 contends that evidence could not establish, beyond reasonable doubt, either of the alternative fault elements for a person to be found guilty of aiding or abetting another person to commit an offence contained in s 43BG of the Criminal Code.
(b)Ground 2: A miscarriage of justice resulted from the failure of the Crown to identify the offence the subject of the alternative pathway in s 43BG(3)(b). Ground 2 contends the Defence did not know the case it had to meet at the time it made its closing address.
(c)Ground 3: A miscarriage of justice resulted from the admission into evidence of Exhibit P1 and Exhibit P2 as prior inconsistent statements of Baxter, when neither was admissible.
(d)Ground 4: The evidence about a third offender (‘Hyde’) lighting two fires in his cell, one at around 10.56 pm and one at around the same time as Baxter lit the fire in his cell, should have been excluded pursuant to s 137 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘the ENULA’) because its probative value was outweighed by the danger of unfair prejudice to the applicant.
The applications were opposed by the respondent, including on the basis that the grounds of appeal have no realistic prospects of success.
If leave were to be granted, the determination of the appeal would be governed by the common appeal provisions of s 411 of the Criminal Code, which relevantly provide:
(1) The Court on any such appeal against a finding of guilt shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.
(2) The Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The evidence
The following matters were not in dispute.
On 5 June 2020, the applicant and Baxter were prisoners at the DCC. They were accommodated in cells opposite one another, with a corridor approximately 10 metres wide between the cells. The applicant created a line out of plastic garbage bin liners with something small to act as a weight attached to the end, known in prison slang as a ‘fishing line’. Baxter also created a fishing line. The applicant and Baxter each cast their fishing lines under their cell doors, and the fishing lines connected up, allowing Baxter to drag the applicant’s fishing line into his cell. At about 12.56 am, the applicant used an unknown ignition source to set fire either to the fishing line or to something flammable connected to the fishing line. Baxter hauled the lit fishing line into his cell under the door. This fishing exercise was caught on CCTV. The footage had no sound recording.
Baxter used the fire from the applicant’s fishing line to light a pile of materials he had assembled in the shower recess of his cell, including his mattress, bedding, rubbish, felt torn from a pin up board, a TV console or computer monitor and clothing. Those materials caught alight and created a fire inside the shower recess of his cell, charring and damaging the walls and ceiling of the cell. The smoke from the fire set off the fire alarms and a ‘Code Red’ was issued within two minutes after Baxter hauled the lit fishing line into his cell. Two minutes after the alarms went off, Correctional officers entered Baxter’s cell. They put out the fire, which had generated a lot of black smoke into the cell and completely burnt some items in the pile of materials. Baxter and a Correctional officer were subsequently taken to hospital for observation due to smoke inhalation.
At about the same time as the fire was burning in Baxter’s cell, Hyde used an ignition source to set fire to flammable items in his cell. Hyde had also lit a fire in his cell earlier that evening. The Crown did not allege that Hyde was acting in concert with the applicant and Baxter. The Crown case was that Hyde made his own decision to light the fire in his cell.
The Crown identified Baxter as a witness to be called at the trial. On 8 July 2021, a Basha inquiry had been listed in relation to Baxter’s evidence. That inquiry was vacated. On 9 July 2021, which was the Friday before the applicant’s trial commenced on the following Monday, Baxter pleaded guilty to a charge of arson on the basis of agreed facts in the form admitted in the applicant’s trial as Exhibit P2, and was sentenced for that offence.
On the morning of 12 July 2021, just prior to the commencement of the trial, the Defence made application for a Basha inquiry in relation to Baxter’s evidence. In response to that application, the Crown obtained a statement from Baxter. In that statement, Baxter disavowed certain parts of the agreed facts in Exhibit P2, and said, essentially, that he had asked the applicant to give him a light to smoke a tea bag cigarette, and that there was no agreement between them that Baxter would use the flame on the fishing line to light a fire in his cell. The Crown made an application at trial for leave to cross-examine Baxter pursuant to s 38 of the ENULA as an unfavourable witness and on the basis of a prior inconsistent statement (being the agreed facts in Exhibit P2). The trial Judge granted leave to cross-examine on the prior inconsistent statement, and in relation to the relationship between Baxter and the applicant and Baxter’s motive for giving evidence unfavourable to the Crown case against the applicant (as matters going to Baxter's credit).
Baxter’s evidence at trial will be detailed below, but essentially he said he wanted a light to smoke a tea bag cigarette rather than to start a fire in his cell, he did not initially intend to light a fire in his cell, and he only decided to do so after he had finished his tea bag ‘smoke’. He then collected the various materials, put them in the shower recess and set them on fire using the lit ‘wick’ from the applicant which was still burning on his desk.
The other evidence called by the Crown was from Correctional officers who attended the cell in response to the Code Red, a fire investigator who examined both the applicant’s and Baxter’s cells, a crime scene examiner and the officer in charge of the police investigation. The CCTV footage was also played and tendered into evidence.
The evidence of the officer in charge included that Hyde was a prisoner accommodated in the cell next to Baxter’s at the time of these events; that at about 10.53 pm on 5 June 2020 Hyde lit a fire in his cell which was extinguished without causing any damage in the cell; that after they dealt with the fire in Baxter’s cell (which was shortly after 1.05 am); Correctional officers discovered there was also a fire in Hyde's cell; that they extinguished that fire; and that Hyde had been charged in relation to that conduct.[4]
The elements of the charge and complicity and common purpose
Section 243(1) of the Criminal Code provides that a person is guilty of an offence if they cause damage to (relevantly) a building by using fire. The fault elements[5] are that the person (relevantly):
(a)intentionally uses fire; and
(b)intentionally causes, or is reckless as to causing, damage to a building.
Section 43BG of the Criminal Code applies to an offence against s 243.[6] Section 43BG(1) provides that a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly. Section 43BG(2) provides that, for the person to be guilty:
(a)the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b)the offence must have been committed by the other person.
Section 43BG(3) provides that, for the person to be guilty, the person must have intended[7] that:
(a)the person’s conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b)the person’s conduct would aid, abet, counsel or procure the commission of an offence and have been reckless[8] about the commission of the offence (including its fault elements) that the other person in fact committed.
It follows that there were two possible pathways to guilt. Under the first pathway, the Crown was required to prove, beyond reasonable doubt, that the applicant intended that his conduct would aid Baxter to commit any offence of the type he committed. Whether an offence is ‘of the type’ actually committed is ‘a question of law to be decided as a matter of the court’s evaluation from case to case whether the particular crime bore such similarity to that of which the accused had knowledge, to fall within the rule’.[9] Baxter committed the offence of arson, ie the offence of intentionally or recklessly causing damage to a building using fire. For this pathway, in the circumstances of this case, the only relevant offence suggested by the Crown was the offence of arson. Hence, the Crown was required to prove that the applicant intended that his conduct would aid Baxter to intentionally or recklessly cause damage to a building using fire.
Under the second pathway to guilt, the Crown was required to prove, beyond reasonable doubt, that the applicant intended that his conduct would aid Baxter to commit any offence and the applicant was reckless about Baxter committing the offence he in fact committed, namely intentionally or recklessly causing damage to a building using fire. For this pathway, the relevant offence put to the jury was the possession of a prohibited thing contrary to s 175(1) of the Correctional Services Act 2014 (NT).[10] The prohibited thing was ‘the burning object’ the applicant passed to Baxter via the fishing lines. Hence, the Crown was required to prove that the applicant intended that his conduct would aid Baxter to commit the offence of possession of a prohibited thing and the applicant was reckless about Baxter committing the offence of intentionally or recklessly causing damage to a building using fire.
Ground 3 –Miscarriage of justice by the admission of Exhibits P1 and P2
It is convenient to deal with Ground 3 first.
Exhibit P2 comprised the agreed facts which were tendered and read to the Court when Baxter pleaded guilty to the charge of arson on 9 July 2021. Relevantly, Exhibit P2 contained the following:
1.    The offender in this matter is [Baxter]. At the time of the alleged offending he was 25 years old and an inmate at the [DCC] … on remand.
2.    Co-accused, HILLEN [ie, the applicant], was a serving prisoner at the [DCC] ...
3.    [Hyde], also a serving prisoner, has been charged with the arson of his cell, committed at approximately the same time as the offender.
4.    On the evening of 5 June 2020, the offender was housed in Sector 5 Charlie 1, Cell 6.
5.    Co-accused HILLEN was housed in Sector 5 Charlie 1, Cell 12.
6.    [Hyde] was housed in Sector 5 Charlie 1, Cell 7, next to the offender.
7.    Sometime prior to 12.56 am on 6 June 2020 the offender attempted to use a conduit, likely a USB cable wire, and placed it into a power point inside his cell, in an attempt to create an ignition source to set fire to a flammable item in order to start a fire in his cell. The offender was unsuccessful as he tripped the power to his cell, therefore disconnecting the power point as an ignition source.
8.    The offender and HILLEN then agreed to work together to set a fire in the cell of the offender.
9.    The offender and HILLEN designed what is commonly referred to as ‘fishing lines’ in order to pass items from one cell to another. Fishing lines are long pieces of material with weighted ends that contain a ‘hook’ in order to pass items from under the door of one cell to another. The offender and HILLEN used stripes [sic] of twirled plastic bin liners joined together in order to create the fishing lines.
10. The offender and HILLEN ‘threw a line’ each from under their cell doors in order for them to meet and catch on to one another. HILLEN was able to drag the offender’s line into his cell allowing a direct line from HILLEN’s cell to the offender’s.
11. At 12.56 am, HILLEN used an ignition source to set fire to flammable items inside his cell and signalled for the offender to drag the item, now on fire into his cell. The offender used the joined lines to drag the fire into his cell.
12. The dragging of the fire from HILLEN’s cell to the offender’s cell is clearly captured on Closed Circuit Television (CCTV).
13. The offender placed his mattress, a television and clothing on top of one another in the shower area and used the fire started by HILLEN, now inside his own cell, to ignite a fire in his cell causing extensive charring and damage to the walls. The fire set off a fire alarm in the sector and a ‘code red’ was called in the centre alerting staff to a fire.
14. The Crown case is that [Hyde] made the decision on his own to set fire to his own cell at during the same period. [Hyde] used an ignition source in his cell to set fire to flammable items and also stacked clothing and other flammable items in the shower area. The fire in [Hyde’s] cell took hold and caused extensive charring and damage to the interior of the cell.
…
18. Fire Investigator FRANCIS conducted an initial assessment and determined that the switch to the offender’s cell had been ‘shorted out’. FRANCIS determined that the fire was initiated in Cell 12 using burning paper attached to a drawstring, and pulled into Cell 6, consistent with the CCTV footage. Once the burning paper on the drawstring reached Cell 6, it was used to ignite available combustible material.
19. As a result of the fire and the offender’s actions inside his cell, the following damage was caused:
a.Minor smoke damage around the door;
b.Smoke staining to the ceiling and walls in the sleeping area;
…
f.Sooting on the louvers and window frames;
g.Burn marks to a mattress moved into the shower area;
h.Burning and smoke damage to the shower area ceiling and walls;
…
20. The cost of repairs to Cell 6 is approximately $11,260.

In cross-examination by the Crown pursuant to s 38 of the ENULA, Baxter gave evidence that he knew the applicant and had known him for a long time, but they were not friends. He said they would talk when they were unlocked. Baxter said that around midnight on 5 June 2020 he was in his cell and rolled up a tea bag for a smoke. He put a piece of foil in the power point in an attempt to create a source of ignition for the cigarette, but that caused a fuse to blow. He said he ‘yelled out for someone to lend me a light, so [I] can light the tea bags’. He said the applicant ‘reckoned he’d light me – he’ll do me a light for my tea bags, so … he did’. When asked exactly what the applicant said to him, Baxter said the applicant ‘said that he’d like me to do something for my tea bags habit’, and ‘I’ll light you a wick’. He said ‘we fished for it’.
Baxter said he made a fishing line from bin liners and put soap on the end so it was heavy and slid across the floor from cell to cell. He said it took him about a minute to set up the line, they each sent a line out which caught each other in the middle, the applicant ‘sent that thing for that tea bag, that light’, and Baxter pulled the light into his cell. Baxter said that once he pulled the fire in, he ‘had a smoke on that tea bag’ and ‘when that thing was still alight, I had to burn my cell’. He said he put the mattress and the TV in the shower after he had the smoke. He said that while he was putting the items in the shower, the fire was still burning on the toilet paper. He said he put the fire on the toilet paper after he had the smoke. He then said he put the fire on a couple of pieces of toilet roll, which he put on the bench in his cell, and it sat there while he got the items and moved them to the shower. He said he thought it took about a minute to move those items, and the light nearly went out. He also put clothes and blankets into the shower area, and he did that while the fire was on the bench.
When Baxter was taken back to the sequence in which these events had occurred, he said that he had ‘a couple of drags’ on the teabag which he had rolled up like a normal cigarette in paper. He said he used the paper that was the outside cover on the toilet paper to roll it up like a ‘rollie’. He said he had already made the tea bag smoke, but he could not light it. He said when the fire came into his cell on the fishing line, he grabbed the fire, put it to the toilet paper so it was burning, then lit the tea bag cigarette, had a few puffs out of it and then while ‘the thing’ was still burning he put everything in the shower. He said he had about four puffs of the tea bag cigarette, then threw it into the toilet bowl. He said it took about one or two minutes to hook the applicant’s fishing line with his.
Baxter was then cross-examined by the Crown about his guilty plea entered the Friday before. He agreed that he pleaded guilty to causing damage to his cell with fire, that the charge was read out to him, that he answered ‘guilty’ to it knowing that he would be sentenced, and that he heard the prosecutor read out the agreed facts in court. There were also the following exchanges:
And you agreed, through your lawyer, … that those facts were the true story of what had happened. Isn’t that right?---Yeah, for my part.
…
Yes. And [your lawyer] went through the facts with you, didn’t he?---Yeah.
He talked to you about those facts?
MR THOMAS: Well, I object on the basis of this; legal professional privilege. I object.
HER HONOUR: I’m not going to allow that objection, Mr Thomas. Have a seat, please.
…
MS EVERITT: He had spoken to you about what you agreed happened?---Yeah, I got the facts there with me. I brought it with me.
You’ve got those facts with you?---Yeah.
And he, that is [your lawyer], checked that you agreed with everything that was in that document, didn’t he?---Not everything, just some of them.
Just some of them?---Yeah.
So, he didn’t check with you each paragraph?---Some of them was not true.
Mr Baxter, are you now saying that some of what’s in that document is not true?---Yeah, but about [Hyde] and all that. … Some of them was not true about [Hyde] and all that.
…
All right, so other than the bit about [Hyde]?---Mm mm.
- - - is there anything else in that document that’s not true?---No.
All right. And [your lawyer] took you through that document, those facts?---Yeah.
And you agreed that they were true?---Yeah.
…
MR THOMAS: Your Honour, if I could just make this clear, just that everything, in terms of this witness’s communication with [his lawyer] I object to, on the basis of breach of legal professional privilege.
HER HONOUR: Yes.
MR THOMAS: The whole lot is objected to, everything.
…
MS EVERITT: Mr Baxter, you said you got that agreed facts document with you?---Yeah.
Have you read it over today?---Yeah.
And you said before that the stuff about [Hyde] is the only bit that’s not true?---Yeah.
All right. Did you tell [your lawyer] that those things weren’t true?---Yeah, he told me that it’s got nothing to do with us, yeah.
Can you read okay, Mr Baxter?---Some.
All right. I’m going to ask that you be handed this document [Exhibit P2]. Mr Baxter, is that the agreed facts document that we’ve been talking about?---Yeah, I got that.
Yes. Can you tell us, looking at the numbers, which paragraphs you say are about [Hyde] and aren’t true?---14. … And 6.
...
So, 6 and 14?---Yeah.
Are they not the true story?---My lawyer told me it’s nothing to do with him and me.
Okay?---Yeah.
But do you know whether that’s true or not true, or you just don’t know?---I just don’t know.
Okay. The rest of the document, that’s all a true story of what happened, is that right?---Yeah.
All right. If I could get that document back, thank you.
Now, in that agreed facts document that you agreed to in court, and you’ve just confirmed now is true?---Yeah.
You agreed that you tried to start the fire yourself, didn’t you?---Yeah.
And you specifically agreed that, when you were trying to start that photo [sic, fire] in the power point; that that was so you could start the fire in your cell, isn’t that right?---Start a fire in my cell?
Yes?---For the tea bag.
…
Mr Baxter, you agreed that, in an attempt to create an ignition source, to set fire to a flammable item, in order to start a fire in your cell?---Yeah.
Yes?---Yeah.
You agree that that’s what you said?---Yeah, I pled guilty for that only three days back.
And that’s the true story?---Yeah.
And that’s why you were trying to start that fire yourself?---What are you trying to say?
So, Mr Baxter, you agreed in your sentencing proceedings; so, before that other court, that when you tried to start that fire yourself, but you couldn’t – you know that bit?---Yeah
That that wasn’t to light a tea bag on fire. That was so that you could start a fire inside your cell?---That was supposed to be for the tea bag; but, yeah, I had to burn the cell, too.
…
All right. Mr Baxter, you also agreed in that document and in court on Friday that you and Mr Hillen agreed to work together to set a fire in your cell, isn’t that right?---Agreement – like, what are you trying to say?
You agreed - - -?---Are you saying that me and him was talking about making a fire?
Yes?---How did we make an agreement?
Mr Baxter, that’s what you agreed?---Yeah, I agreed for myself, but I asked him to give a light for my tea bag.
… [Again shown Exhibit P2]
Mr Baxter, I’ll ask you to look at par 8 where you’ve agreed through that document that you and Mr Hillen then agreed to work together to set the fire in the cell of the offender, being yourself?---No like making lies init.
Well, Mr Baxter, is that’s what’s contained within that document?---Yeah.
And is that what you agreed with [your lawyer] and in court on Friday was the true story?---Yeah.
…
Mr Baxter, do you agree with me that the document in front of you says that you and Mr Hillen agreed to work together to set a fire in your cell?---No.
You don’t agree that that’s what’s in the document?---It’s in the document but it wasn’t the plan.
…
And you spoke to your lawyer about this document?---For myself, I plead guilty for myself.
… [Referred to paragraph 7 of Exhibit P2]
And is that true?---Is that true, to start a fire in my cell? No.
That’s not true?---No.
So, what’s the true story?---Try to make a light for my – for flammable for my – for the tea bags, like I said.
So, when you said to me earlier that everything in this document, except for the bits about [Hyde], was true, that was wrong?---Yeah.
…
Baxter handed to the prosecutor the agreed facts document he had brought with him to Court. The document was received into evidence as Exhibit P1. Exhibit P1 is plainly an earlier iteration of the agreed facts document contained at Exhibit P2. Much of the content is identical to Exhibit P2 and (with one exception) the remainder is very similar, but Exhibit P1 shows marked up changes in some of the paragraphs by way of striking out for deletions from the text and underling for additions to the text. Exhibit P1 is also signed and dated at the bottom of each page by Baxter and another person referred to on the last page as ‘witness’. Exhibit P1 also has ticks in the right hand margin against every paragraph that is not struck out. Aside from the re-numbering of paragraphs following a struck out paragraph, the relevant paragraphs of Exhibit P1 which differ from the paragraphs of Exhibit P2 are as follows:
~~3.[Hyde], also a serving prisoner, has been charged with the arson of his cell, committed at approximately the same time as the offender.~~
…
7.6.   Sometime prior to 12.56 am on 6 June 2020 the offender and HILLEN agreed to work together to set a fire into the cell of the offender.
8.7.   It is alleged [Hyde] made the decision on his own to set fire to his own cell at approximately the same time.
9.8.   The offender attempted to use a conduit, likely a USB cable wire, and placed it into a power point inside his cell, in an attempt to create an ignition source to set fire to a flammable item in order to start a fire in his cell. The offender was unsuccessful as he tripped the power to his cell, therefore disconnecting the power point as an ignition source.
…
15.At the same time, [Hyde] has used an ignition source in his cell to set fire to flammable items and also stacked clothing and other flammable items in the shower area. The fire in [Hyde’s] cell took hold and also caused extensive charring and damage to the interior of the cell.
…
~~22.The offender would not have been able to set fire to his cell without the assistance of the [sic] HILLEN.~~
In cross-examination by the Crown, Baxter said there was a tick next to paragraph 8, which his lawyer put there because he, Baxter, agreed with the content of it. He agreed there was also a tick next to paragraph 6, which his lawyer put there. He said he did not know why his lawyer put the tick there and must have put it there when Baxter was not looking. Baxter agreed his signature was on the bottom of the document, and said he signed it because he agreed with its content. He said, ‘I just agreed for myself. I was tired.’ He said he agreed to certain things because he was tired, even though he knew he was going to get a ‘big sentence’ for what he said. He agreed that there were ticks on the paragraphs but said they were not there when he signed, and his lawyer ticked after he signed. He said his lawyer did not read out all of the paragraphs to him, only paragraphs 6 and 8-13. He said he got the document back from the guards straight after his lawyer left him in the interview room and it had the ticks on it, but they were not there when he signed it.
In further cross-examination by the Crown, Baxter was asked a number of questions about being a ‘dog’, which, he agreed, is a person who turns on another prisoner. He agreed dogs are not liked in prison and that sometimes things can happen to people who dog on another prisoner. He denied he was worried about being a dog. He said he did not understand the questions putting to him that the reason he told the jury a different story, the story about the tea bags, is because he didn’t want to be a dog. He said he was not that kind of person. He said that when the applicant was not present in court on the Friday, he had told the truth ‘[f]or me, yeah. That was for my case. I told the truth for myself.’
In cross-examination by defence counsel, Baxter was taken through the statement he made to Police on the morning of the first day of the trial. He agreed that the statement was true. It said that he had placed a piece of foil in the power point to set some tea bags on fire, that smoking tea bags was useful because smoking cigarettes is not allowed in the prison, and the purpose of setting the tea bags on fire was to smoke them. The foil shorted out the power point, so he yelled out for the applicant to set a ‘wick’ for him, meaning to create a fire on a fishing line for him. The fishing line had soap on it to make it easier to slide under the cell door and across to the other side of the block. The statement said that he told the applicant he needed a light to ignite the two tea bags in order to smoke them. He heard the applicant say ‘go, go’, meaning that he had lit the fire. Baxter’s and the applicant’s fishing lines linked up, he pulled the applicant’s line with the fire back into his cell, and he smoked the tea bag. He then moved his TV, mattress and clothing into the shower area, started a fire on toilet paper underneath the mattress, and caused the fire.
Baxter agreed with defence counsel’s proposition that all of what was contained in the statement was true. He agreed that he just wanted to accept whatever was in the agreed facts document and get it over and done with, because he was tired and wanted to get out of there. He agreed there were bits and pieces in the agreed facts document he did not agree with, but he ‘nodded his head’ to them. He agreed that, to the extent of any difference between what is in the statement he gave to Police and the agreed facts, it was the statement that was true. He agreed that the agreed facts document came through the prosecution. He agreed that his statement to the effect that he wanted a light for tea bags, and that he yelled out to the applicant for a wick to light the tea bags, was the truth and had nothing to do with not wanting to be a dog.
In re-examination, he agreed that he understood the agreed facts would be important for the length of his sentence.
Exhibits P1 and P2 were received over objection by defence counsel on the bases, essentially, that: (a) Exhibit P1 was the subject of legal professional privilege; and (b) both were unreliable given the differences between them and Baxter’s evidence, and the amendments and ticks on Exhibit P1. There was also objection to Baxter’s evidence about communications between himself and his lawyer as the subject of legal professional privilege.
Counsel for the applicant submitted in this Court that both Exhibit P1 and Exhibit P2 were inadmissible, but for different reasons.
Admissibility of Exhibit P2
Exhibit P2 was initially tendered in the Crown case as evidence of the content of a prior inconsistent statement relevant to Baxter’s credibility. It was subsequently relied on as evidence going to the applicant’s guilt as evidence of the truth of the facts referred to in it.
The hearsay rule in s 59(1) of the ENULA provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can be reasonably be supposed that the person intended to assert by the representation. The fact is referred to as an ‘asserted fact’ (s 59(2)). Section 60(1) provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
The Crown tendered Exhibit P2 because it was relevant to the assessment of Baxter’s credibility. Tendered for that purpose, Exhibit P2 is ‘credibility evidence’ within the meaning of s 101A(1) of the ENULA.
By the ‘credibility rule’ in s 102 of the ENULA, credibility evidence about a witness is not admissible unless it falls within one of the exceptions to the credibility rule. The relevant exception is s 106(1), which provides that the credibility rule does not apply to evidence that is relevant to a witness’s credibility and adduced otherwise than from the witness, provided that the substance of the evidence was put to the witness, the witness denied or did not admit or agree to the substance of the evidence, and the Court gives leave to adduce the evidence.
Exhibit P2 was adduced otherwise than from the witness and its substance was put to Baxter and he denied or did not agree to it, at least in relation to the parts relating to Hyde and the part which said that he and the applicant agreed to work together to set a fire in Baxter’s cell.
The Court’s leave to adduce the evidence under s 106((1)(b) is not required if the evidence tends to prove that the witness (relevantly) has made a prior inconsistent statement (s 106(2)(c)).
The term ‘prior inconsistent statement’ is defined to mean a previous representation that is inconsistent with evidence given by the witness (Dictionary at the end of the ENULA).
The term ‘previous representation’ is defined to mean a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced (Dictionary).
The term ‘representation’ is defined to include (relevantly): (a) an express or implied representation (whether oral or in writing); and (b) a representation to be inferred from conduct (Dictionary).
A representation contained in a document is taken to have been made by a person if: (a) the document was written, made or otherwise produced by the person; or (b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document (Dictionary, cl 6).
Counsel for the applicant argued that Exhibit P2 was not written, made or otherwise produced by Baxter, and was not signed, initialled or otherwise marked by Baxter, so it was not a representation and, consequently, not a prior inconsistent statement admissible pursuant to s 106(2)(c) of the ENULA.
As the respondent submitted, Exhibit P2 was not a document containing Baxter’s representation within cl 6 of the Dictionary. Rather, Exhibit P2 was, in the absence of available transcript of Baxter’s sentencing proceedings on 9 July 2021, a convenient record of the content of the representations made by Baxter by his conduct on that day in pleading guilty and admitting those agreed facts.
The respondent relied on Power v The Queen (2014) 43 VR 261. That case concerned an appeal from convictions for a number of serious offences. The Crown case was that the appellant and two other men committed the offending. The identity of the two co-offenders was not in dispute and they pleaded guilty to the offending. The defence case was that the appellant was not the third offender. One of the co-offenders, Salisbury, was called by the Crown to give evidence. During his evidence in chief, he departed from his statement to Police in which he had identified the applicant as the third offender. The Crown was granted leave to cross-examine Salisbury as an unfavourable witness, including as to matters relevant to his credibility and his prior inconsistent statements. The prosecutor elicited from Salisbury the content of his statement to Police in which he said the appellant was the third offender, and Salisbury gave his explanations for why he told Police that but was now telling the Court that the appellant was not the third offender. The statement to Police was admitted as a prior inconsistent statement. Salisbury was also cross-examined by the Crown about his plea of guilty to the charges and it was elicited that he had not disputed the summary of the facts which was read out to the Court on the plea, which included that the appellant was the third offender.

The Victorian Court of Appeal held that Salisbury’s evidence, both of his plea and what the summary of facts said, was admissible as evidence going to Salisbury’s credit and to proof of the appellant’s guilt. Redlich JA and Robson AJA held (at [53]) that it was not open to doubt that a prosecutor, upon being granted leave to treat a witness as unfavourable and cross-examine them as to credit, could seek to use the co-offender’s plea during such cross-examination in order to bolster or undermine the credibility of the witness or his testimony in a number of ways. Further, where the evidence extends to the summary of facts provided to the court following the plea, that evidence may, in certain circumstances, be treated as a prior representation and so become evidence of the appellant’s guilt.
Their Honours quoted (at [45]) a passage from Heydon JA in The Queen v Le (2002) 54 NSWLR 474 at [66]-[67] in which his Honour explained why an attack on credibility is inextricably part of the cross-examination permitted in s 38(1) of the ENULA. That is essentially because the purposes of a s 38 examination are to enable counsel calling the witness to demonstrate that the evidence in chief which led prior to the s 38 order is false, and that any prior statement inconsistent with it is true. Those purposes can be assisted by obtaining concessions from the witness about matters tending to indicate the falsity of the impugned evidence, such as the lateness with which the impugned story is advanced, or the inherent improbability of the impugned story. They can also be assisted by eliciting evidence tending to show the truthfulness of prior statements inconsistent with the impugned evidence, such as the fact that they were made under conditions conducive to accurate recollection and expression and conducive to sincerity.
Their Honours held (at [60]-[61]) as follows:
In our view, the [Victorian equivalent of the ENULA] enables the facts elicited from Salisbury as to the content of the prosecution summary, when considered in conjunction with Salisbury’s plea of guilty, to be treated as a representation that the appellant was one of the three offenders. In the recent … decision of this Court in SLS v The Queen [[2014] VSCA 31 at [274]], Ashley, Redlich and Priest JJA in their joint reasons stated by way of a general proposition that it can be inferred from a plea of guilty and a prosecution summary of facts that is not disputed that the prisoner has made a number of representations as to the facts asserted in the summary. It may be open to the jury to conclude that the prisoner is admitting that the facts contained in the summary are true. It would be for the trial judge to determine whether the particular inference is open and whether on any ground the evidence should be excluded.
The Dictionary to the [Victorian equivalent of the ENULA] defines a ‘prior inconsistent statement’ as ‘a previous representation that is inconsistent with evidence given by a witness’. ‘Representation’, in turn, is defined as including representations that are express or implied, in writing or inferred from conduct. In Lee v The Queen [(1998) 195 CLR 594 at 599-600], the High Court referred to the Interim Report of the Law Reform Commission which explained that the term ‘representation’ is used to apply to statements and conduct and was used to encompass all that those statements or that conduct would convey to the observer.
Their Honours held (at [67]) that the jury would have been entitled to conclude from Salisbury’s conduct on the plea that he accepted the prosecutor’s summary of facts to be true, and (at [68]) that a co-offender by his conduct on the plea may be treated as assenting to and adopting the assertions of fact in the summary of facts on the basis that the co-offender’s legal representative will have settled the terms of the agreed facts as the agent of the co-offender with ostensible authority to do so.
Their Honours held (at [68] and [70]) that, in the absence of some evidence raising a doubt as to whether the offender accepted the accuracy of the summary of facts, the combination of the offender’s plea of guilty together with his willingness to be sentenced on the basis of the summary of facts will ordinarily support an inference that the facts constitute a prior representation. Their Honours referred (at [69]) to some instances in which there may be evidence that assertions in a summary of facts are not to be attributed to the co-offender, and gave the example of Director of Public Prosecutions (Vic) v Bourbaud,[11] in which the co-accused had given explanations for their pleas of guilty which lessened the effect of those pleas and the trial judge had limited the use of the summary of facts to the credibility of the co-accused.
Their Honours held (at [71]) that the inference could readily have been drawn by the jury that the summary of facts ‘constituted a representation that the appellant was the third offender’, noting the following matters. First, nothing emerged in the conduct of the trial to indicate that the summary of facts was not accepted by Salisbury at the time of the plea as a correct account of his version of the relevant events. Second, Salisbury acknowledged that the summary of facts was based upon the information he had provided in his Police statement. Third, Salisbury testified he was represented on the plea, and he expressed no reservation as to the summary of facts put to him during the course of the plea proceedings. Fourth, Salisbury had stated repeatedly in his evidence that his Police statement was more reliable than his oral evidence and was his best recollection of what happened. Fifth, Salisbury acknowledged in his evidence that he had at no time prior to the commencement of the appellant’s trial suggested that the appellant was not the third offender. Finally, there was no evidence to suggest that at the time of the plea he did not accept that the summary of facts read out to the Court was true.
In this case, while Exhibit P2 was not based on a prior statement made by Baxter to Police, and there was no evidence from Baxter confirming the matters in a prior Police statement, there was evidence from Baxter confirming that he pleaded guilty on the basis of the facts in Exhibit P2, and that all of what was in Exhibit P2 was true except those paragraphs relating to Hyde. He later gave different evidence, extending his disagreement to paragraphs relating to his own purpose in trying to start a fire with the power point and whether he and the applicant agreed to work together to set a fire in his cell. There was a statement given by Baxter to Police on the morning of the applicant’s trial commenced which recanted some of the facts Baxter had agreed for the purpose of his plea, but that was given after he had entered his plea and been sentenced on the basis of those agreed facts. There was also evidence from Baxter that he agreed to the facts ‘for himself’, and he was tired and just agreed to get it over and done with. Nevertheless, we consider that it was open to the jury to draw the ready inference that Baxter’s entry of the plea on the basis of the agreed facts set out in Exhibit P2 constituted a representation of Baxter by his conduct of the facts there set out.
To adopt the language of Redlich JA and Robson AJA in Power (at [73]), the inference usually drawn from the presentation of an undisputed summary of facts read out to the sentencing judge following a plea of guilty was plainly open in this case. The combination of Baxter’s plea together with the admission of the facts set out in Exhibit P2 clearly answered the description of a representation under the ENULA, and would permit the inferences that the assertions of fact in Exhibit P2 may be attributed to Baxter and that he accepted them as true, such that his conduct on the plea was admissible as going, not only to Baxter’s credit, but also to proof of the applicant’s guilt.
Power did not concern the tender of a document containing the summary of facts read out on the plea. The issue posed by cl 6 did not arise. Nevertheless, as the analysis in Power makes clear, Baxter’s conduct in entering the plea on the basis of the facts read out in the sentencing court comprises the relevant representation. He gave evidence that he pleaded guilty to a charge of setting a fire in his cell causing damage to a building on the basis of agreed facts that were read out in court, those facts were admitted by him through his lawyer, and those facts were the facts set out in Exhibit P2. His representation by conduct is not ‘a representation contained in a document’ within the terms of cl 6.
Baxter’s representation by his conduct, the content of which is evidenced in Exhibit P2, is different to a previous representation made in a document by a person who is not available to give evidence about an asserted fact within s 63(2)(b) of the ENULA. Section 63(2)(b) concerns ‘a document so far as it contains the representation’. In relation to documents within s 63(2)(b), various authorities have held that compliance with cl 6 is ‘mandatory’ such that, if the document containing the representation was not written, made, signed or initialled by the maker of the representation, the document is inadmissible under that section.[12] Exhibit P2 was not tendered pursuant to s 63(2)(b).
For the above reasons, we reject the applicant’s submission that cl 6 of the Dictionary rendered Exhibit P2 inadmissible. To the contrary, Exhibit P2 is a previous representation, admissible as credibility evidence under s 106(1) and (2)(c) and as proof of the asserted facts it sets out because it is excluded from the operation of the hearsay rule by s 60(1).[13]
Admissibility of Exhibit P1
Exhibit P1 was tendered in the Crown case for two purposes. The first purpose was to rebut a finding that the inconsistency between Baxter’s evidence in the trial and the agreed facts was explained in a way that was not adverse to his credibility. Exhibit P1 was relevant to: (a) proof that there was negotiation between Baxter and the Crown about the facts for the plea such that it could not be characterised as a ‘plea of convenience’; and (b) proof that the negotiation went to facts relating not only to Baxter, but also the applicant, and so, contrary to Baxter’s evidence, he was not only agreeing facts about himself but also about the applicant’s conduct. The second purpose was to enable the jury to understand Baxter’s evidence about Exhibit P1, including paragraphs he agreed or disagreed with, and its relationship to Exhibit P2.
Counsel for the applicant submitted that Exhibit P1 did not advance proof of any relevant issue given Baxter’s evidence to the effect that it was a plea of convenience, and did not shed any further light on his evidence. We reject those submissions. Baxter’s evidence to the effect that he only agreed to the facts because he was tired and just wanted to get it over and done with, and that his agreement was directed only to his own involvement, constitute the first reason and purpose for the tender of Exhibit P1. It is also the case that Baxter gave evidence about the meaning and significance of the markings on Exhibit P1, and the jury’s comprehension of that evidence was assisted by being able to see what Exhibit P1 contained.
Exhibit P1 comprised a prior inconsistent statement because it was a previous representation of Baxter contained in a document. Clause 6 of the Dictionary of the ENULA applied to it. The respondent contended that the requirements of cl 6 were satisfied because Baxter had signed Exhibit P1. On the other hand, counsel for the applicant submitted that while Baxter’s evidence was that he signed the document, it was a ‘work in progress’ because there were amendments to it, there was no evidence who made those amendments and whether that occurred before or after Baxter signed it, there was no evidence that Baxter was aware of the amendments, and Baxter did not initial those amendments or otherwise indicate an acceptance of them on the face of the document.
The amendments made to Exhibit P1 are plainly ‘tracked changes’ made to an electronic version of a document which are ‘marked up’ to show deletions by a line through the text and additions by underlining, in the way commonly employed in word processing applications. None of the amendments are made by hand upon printed text. Rather, they are plainly all amendments which formed part of the printed version of the document. By his signature, Baxter adopted the document in its printed form with those marked up amendments on it. We reject the applicant’s submission that the ticks on Exhibit P1 and Baxter’s evidence about that somehow diminish the force of Baxter’s signature on the document. Each paragraph that is not struck through is ticked, and each paragraph that is struck through is not ticked. The ticks are entirely consistent with the marked up amendments to the document. They cannot raise any doubt about Baxter’s adoption by his signature of the document in its printed form. Consequently, there was no requirement for each of the amendments to be initialled by him in order for Exhibit P1 to satisfy the requirements of cl 6 of the Dictionary of the ENULA. The requirements of cl 6 were satisfied.
Counsel for the applicant argued that paragraph 6 of Exhibit P1 could, but for the amendments, have read, ‘… [Baxter] and Hillen agreed to work together to set a fire into the cell of [Baxter]’, which could have been consistent with Baxter’s evidence that he asked the applicant to pass him a ‘wick’ to light a tea bag cigarette. In other words, paragraph 6 is not inconsistent with Baxter’s evidence and therefore could not be a prior inconsistent statement. We do not accept that Exhibit P1 could rationally be read that way. Without the amendments, it read, ‘… [Baxter] and Hillen agreed to work together to set fire to the cell of the offender’ and, with the amendments, it read, ‘… [Baxter] and Hillen agreed to work together to set a fire in the cell of the offender’. Either way, paragraph 6 was not consistent with Baxter’s evidence. Given that the amendments formed part of the printed document, there is no warrant for reading them in the way submitted by the applicant.
Counsel for the applicant argued that Exhibit P1 was inadmissible due to legal professional privilege. That is, that Exhibit P1 was a confidential document prepared for the dominant purpose of Baxter being provided with legal services relating to a legal proceeding in which Baxter was a party (the criminal proceedings against him) within s 119(b) of the ENULA.[14] Further, it was argued that Baxter’s evidence about Exhibit P1 involved the disclosure of a confidential communication between Baxter and his lawyer that was made for the same dominant purpose within s 119(a) of the ENULA.
The respondent conceded that Exhibit P1 and Baxter’s evidence about it was potentially inadmissible for these reasons.[15] In the terms of s 411(1) of the Criminal Code, this is a concession that the trial Judge potentially made an error of law in determining that Exhibit P1 and Baxter’s evidence about it was admissible. A number of matters should be noted in that respect. First, the privilege inheres in the client who is in receipt of the relevant advice or representation. For that reason, the preclusion on the adduction of evidence subject to legal professional privilege is contingent on ‘objection by [the] client’. Secondly, although defence counsel at trial sought to take the objection, he was not acting on behalf and with the instructions of the co-offender in doing so, and nor did his client have standing to take objection on that ground. Thirdly, the co-offender as the relevant client did not take objection to being examined on the document. Although Baxter had the benefit of legal advice following his cross-examination and elected not to waive privilege generally, he had by that time already given extensive evidence in relation to the content of Exhibit P1 and did not make specific objection to its tender.
No substantial miscarriage of justice occurred
The respondent submitted that even if it was accepted that Exhibit P1 was admitted into evidence in error, in the terms of s 411(2) of the Criminal Code the decision to do so did not result in a substantial miscarriage of justice such that the verdict should be set aside. The respondent put a number of reasons for this.
First, the inadmissible evidence was of little significance because there were numerous other bases upon which the jury could have rejected Baxter’s evidence about seeking a light from the applicant to smoke a tea bag cigarette. Those bases are considered in relation to Ground 1 below. For the reasons there set out, we accept this submission.
Secondly, the respondent argued that Exhibit P1 was favourable to the applicant because it contained paragraph 22, which had been struck out, but read: ‘[Baxter] would not have been able to set fire to his cell without the assistance of … Hillen’. No paragraph in those terms was contained in Exhibit P2. Paragraph 22 of Exhibit P1 put evidence before the jury to the effect that Baxter disagreed with, and had negotiated for the removal of, an agreed fact that he would not have been able to set fire to his cell without the applicant’s assistance. That evidence was favourable to the applicant in the context of two documents which are otherwise the same in almost all other material respects (save that the paragraphs about Hyde were struck through in Exhibit P1, but not struck through in Exhibit P2).
Thirdly, the respondent argued that the applicant had used to his forensic advantage at the trial the failure of the Crown to call Baxter’s lawyer to give evidence about Exhibit P1, and what had occurred between him and Baxter relating to Exhibit P1. Baxter’s lawyer was not called because Baxter was, after his cross-examination, given legal advice about legal professional privilege and determined not to waive it. Consequently, the lawyer would not have been able to give any evidence about his communications with Baxter, so he was not called. In his closing address, Defence counsel submitted as follows:
Now, with regard to the agreed facts, what I say or submit to you at the outset is important is this. The putting together or at least the agreement to agreed facts is something that occurs between defence counsel and the Crown and the defendant.
In terms of the way in which that occurred, the precise way in which that occurred in this case, I suggest to you, there is a big gap, because we don’t have the lawyer … who was Mr Baxter’s lawyer who engaged in the process of the question of agreed facts being tendered to the judge.
… [I]t is interesting though to note this in terms of the swirling mist of exactly what happened last week concerning the putting together of the agreed facts is, again, I’ll repeat, there’s no evidence from the lawyer …
The absence of evidence from Baxter’s lawyer was part of what was submitted to be ‘the swirling question of doubt and reliability concerning’ the agreed facts documents.
Finally, the respondent submitted that Baxter’s evidence about Exhibit P1 and its subsequent admission came in circumstances where: (a) Baxter himself had brought Exhibit P1 with him and produced it when asked for it by the Crown; (b) it was not apparent to either counsel, when Baxter was being asked about whether his lawyer had gone through the agreed facts with him before the sentencing hearing, that he was or may have been referring not to Exhibit P2 (which was not privileged because the facts had been read out on the plea), but to Exhibit P1 (which was arguably subject to privilege); and (c) Baxter was given legal advice about legal professional privilege when that could be arranged. As the respondent submitted, with the benefit of hindsight it can now be seen that evidence about Exhibit P1 should not have been elicited from Baxter before he had opportunity to take advice concerning legal professional privilege. However, by the time it became apparent to the parties and the Court that Baxter may have been giving evidence about Exhibit P1 rather than Exhibit P2, the evidence concerning its content was already largely before the jury.

For all of these reasons, we consider that even if allowing the admission of Exhibit P1 and cross-examination on its content constituted an error of law, no substantial miscarriage of justice has actually occurred. The principal reason for that conclusion is that there were many other and more substantial bases on which the jury could have concluded that Baxter was not a credible witness and rejected his evidence about the purpose for which the applicant provided him with the burning material. As already stated, those bases are discussed further below in relation to Ground 1.
Discretionary exclusion
Finally, counsel for the applicant argued that the references in Exhibits P1 and P2 to Hyde having set a fire in his cell around the same time that Baxter did, and by piling up flammable materials in his shower recess in the same way, raised a danger of unfair prejudice to the applicant within s 137 of the ENULA, and Exhibits P1 and P2 should have been excluded from the evidence. This is essentially the same argument as made in relation to Ground 4 and will be dealt with below when considering that ground of appeal.
For these reasons, we would grant an extension of time and leave to appeal, but dismiss this ground of appeal.
Ground 2 – The two ‘pathways to guilt’
In its opening address to the jury, the Crown submitted that the applicant was charged with arson on the basis that he aided or assisted Baxter to commit the offence of arson. No specific reference was made to the fault elements of the charged offence. The prosecutor simply read out the charge. It follows that the Crown did not, in its opening, confine its case to one pathway under s 43BG(3) of the Criminal Code. It thereby left open all available legal pathways to establish the fault elements. As already described, the first possible pathway was for the Crown to prove that the applicant intended that his conduct would aid Baxter to commit the offence of arson. The second possible pathway was for the Crown to prove that the applicant intended that his conduct would aid Baxter to commit the offence of possessing a prohibited thing, reckless as to whether it would be used by Baxter to commit arson.
After the close of both the Crown case and the Defence case, but before closing addresses were made, there was argument before the Court as to the effect of Baxter’s evidence about asking the applicant for a wick to light and smoke a tea bag cigarette, and whether that gave rise to the alternative pathway involving possession of a prohibited thing. During this argument, defence counsel initially sought the discharge of the jury for ‘unfairness’, and then objected to the inclusion of this alternative pathway in the jury aide on the bases that this had not been previously raised by the Crown and was ‘unnecessarily complicated’.
When specifically asked by the trial Judge how defence counsel would have conducted the case differently if he had known of this alternative pathway at the start of the trial, defence counsel submitted that: (a) he might have conducted his cross-examination of Baxter differently, but did not identify in what manner; and (b) the applicant may have given evidence himself because the Crown case could thereby have been stronger than was initially perceived, but the only potential evidence from the applicant which counsel identified was about Baxter asking the applicant for a wick to light a tea bag and the practice of smoking tea bags in prison. This evidence was said to be a matter which would ‘humanise’ the applicant’s position and make the jury less likely to find that he had aided Baxter to commit the offence of possessing a prohibited thing.
The trial Judge refused to discharge the jury. Her Honour held that the Crown had not particularised its case so as to exclude the alternative pathway, which was open on the evidence of Baxter, including as elicited by the defence in its cross-examination of him. The trial Judge considered herself obliged to place the alternative pathway before the jury.
In her closing address, the prosecutor did not specify the offence the subject of the alternative pathway, but stated that, if the jury were not satisfied that the applicant intended that his conduct would aid Baxter in the commission of an offence of the type of arson, they could find him guilty if he intended that his conduct would aid or abet Baxter ‘in some offence’, and he was reckless about whether Baxter would commit the offence of arson. The prosecutor said that the trial Judge would tell them about the two pathways, but the first was that the applicant did intend that, by providing Baxter with the wick on the fishing line, it would aid and abet Baxter in the commission of an offence of the type he went on to commit. The prosecutor said that if the jury could not find that intention beyond reasonable doubt, they were entitled to consider whether the applicant intended to assist Baxter to commit some other offence and was reckless about whether Baxter would commit arson, and the trial Judge would give them directions on the law as to that other offence.
Counsel for the applicant submitted on this application that the failure of the Crown to identify the ‘other offence’ the subject of the alternative pathway in its opening, or at any time before the defence closed its case, constituted a miscarriage of justice. Reliance was placed on the following observations by Hunt CJ in CL in The Queen v Tangye (1997) 92 A Crim R 545 (at 556):
The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the judge and counsel for the accused, more so than the jury. It is essential that any doubts about the nature of the Crown case be removed at an early stage. If it is not done at that stage, or if there has been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury before counsel commence their final addresses.
In this case, the alternative pathway to guilt arose from Baxter’s evidence, first in cross-examination by the Crown under s 38 of the ENULA and then in cross-examination by defence counsel. That explains the prosecutor’s failure to address it in her opening address. The alternative pathway involving the offence of possessing a prohibited thing was then identified by the Crown in the absence of the jury before counsel commenced their final addresses. While it is the case that the prosecutor did not specify the other offence in her closing address, defence counsel was already well aware of what the other offence was given the lengthy discussion about it in argument the day before, and its presence in the draft jury aide.
Counsel for the applicant argued that, had the alternative pathway been identified by the Crown before the defence closed its case, the defence may have called the applicant to give evidence about his state of mind and the element of recklessness. Counsel for the applicant acknowledged that the defence had opportunity before closing addresses to reopen its case for the applicant to give that evidence, but submitted that such a course would have been ‘concerning’ or ‘potentially a problem’ in terms of ‘the dynamics of appearing in front of the jury’. We do not accept that the defence was precluded from calling evidence from the applicant to address the fault element of recklessness. We do not accept that the unspecified ‘problem’ – presumably of some adverse perception the jury might take to the defence re-opening its case for the applicant to give evidence – was a tactical disadvantage which arose from the trial Judge putting before the jury an alternate pathway to guilt which was open in law upon the evidence but not developed by the Crown in its opening.[16]
No specific evidence was identified which the applicant might have given to address the second pathway. If there was, in reality, some evidence which the applicant could have given which could have raised a reasonable doubt about the second pathway, it was not explained why the jury might have responded adversely to it or to the applicant generally simply because the defence would have had to reopen their case on the same day they had closed it, and why that possibility was so significant that the applicant would elect to refrain from giving that evidence. In the absence of any such specification or explanation, the asserted ‘tactical disadvantage’ was more imagined than real. The test of danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of prejudice by reason of the admission of the evidence.[17]
For these reasons, we would grant an extension of time and leave to appeal, but dismiss this ground of appeal.
Ground 1 – Verdict unreasonable or not supported by the evidence
On this ground, the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[18] An appeal of this kind requires an appellate court to make its own independent assessment of the whole of the evidence, weighing any competing evidence that might tend against the verdict reached by the jury, and determine whether, having regard to any advantages the jury had, it holds a reasonable doubt about the guilt of the appellant.[19]
The CCTV footage showed the wick passing from the applicant’s cell to Baxter’s cell. Photographs of the damage to Baxter’s cell caused by the fire were in evidence. The fire investigator gave evidence about the ignition source, the way the fire had burned and its extent. It was not disputed that the applicant had passed a lit ‘wick’ from his cell to Baxter’s cell, or that Baxter had used that wick to set fire to things in his cell causing damage to the building. It was not disputed that Baxter’s conduct had, in fact, aided Baxter to set fire to the things in his cell causing damage to the building. It was, however, disputed that the applicant had done so with the intention of aiding Baxter, in pursuit of an agreement with him, to set a fire in Baxter’s cell and cause damage to the building, or alternatively, with the intention of aiding Baxter to possess a prohibited thing, and being reckless as to whether Baxter would set a fire in his cell and cause damage to the building.
Three days before giving evidence in the trial, Baxter had pleaded guilty to the charge of arson on the basis of agreed facts that:
(a)Baxter had tried to create an ignition source using the power point in his cell ‘to set fire to a flammable item in order to start a fire in his cell’ (paragraph 7, Exhibit P2);
(b)Baxter and the applicant ‘then agreed to work together to set a fire in’ Baxter’s cell (paragraph 8, Exhibit P2); and
(c)Baxter put things in the shower recess of his cell ‘and used the fire started by [the applicant], now inside his own cell, to ignite a large fire in his cell causing extensive … damage to the walls’.
That evidence would reasonably permit the inference, beyond reasonable doubt, that the applicant intended that his conduct would aid Baxter to intentionally or recklessly cause damage to a building by fire and, consequently, satisfaction of the applicant’s guilt via the pathway under s 43BG(3)(a) of the Criminal Code.
As already described in the context of ground 3, Baxter gave evidence at the trial, after giving a statement to the officer in charge on the morning of the commencement of the trial, that he initially wanted a light to smoke a tea bag, that he called out asking for a light to smoke a tea bag, and that the applicant said he would give him one via a ‘fishing line’, which he did. Baxter's explanation for his agreement to the agreed facts on the plea was that: (a) he was tired and just wanted to get the plea over and done; and (b) he was only agreeing to facts relating to his conduct and, implicitly, not to facts relating to the applicant’s conduct.
The clear inconsistency between Baxter’s previous representation at the sentencing hearing that the agreed facts were true and his evidence at the trial meant Baxter’s credibility was in issue. The question for the jury was whether Baxter’s evidence at the trial was reliable and they could safely act on it. If they found Baxter’s evidence was not reliable, they could put it to one side and consider the remaining evidence in the case.
The CCTV footage showed the lit wick passing from the applicant’s cell to Baxter’s cell. The flame forming the wick was not insubstantial. The CCTV footage showed that the time from when the lit wick exited the applicant’s cell to when the fire alarms went off and the code red was called was about two minutes. Correctional officers opened Baxter’s cell door about two minutes after that. The CCTV footage also showed the amount of smoke and its colour when the Correctional officers opened Baxter’s cell door. An attending Correctional officer gave evidence that, when Baxter’s cell door was opened, he saw a lot of black smoke and flames, and the flames could also be seen from outside the cell block. There were photographs showing the amount of damage to the cell from the fire, which was largely smoke damage to the door, walls and ceiling. There was evidence that Baxter was taken to hospital suffering from smoke inhalation. The fire investigator gave evidence that there was decomposition of some of the fuel load in the shower recess, meaning that that material had gone past the free burning stage and burnt out. All of that evidence indicated that, in those four minutes, the fire had reached a significant level.
Baxter gave evidence that he got the wick into his cell; lit his pre-rolled tea bag cigarette; had a few puffs of it; put it into the toilet bowl; used the still burning wick to light toilet paper or bits of toilet roll which he left burning on the desk or bench in his cell whilst he put the mattress, blankets, clothing, TV monitor and other paper into the shower recess; and then used the lit toilet paper sitting on the desk to set those things on fire. The fire investigator gave evidence that in the shower recess there was also felt material which had been pulled from the pin up area on the wall, plastic, some rubbish and some wadded up or balled up writing paper.
It is improbable that Baxter could have done all of that, and the fire could have reached a significant level sufficient to set off the fire alarms, in the period of two minutes. It is equally improbable that Baxter could have done all of that and the fire could have reached a significant level sufficient to cause the level of burning and decomposition and the degree of damage to the building in the period of four minutes before Correctional officers arrived to extinguish it. Putting the tea bag cigarette into the toilet bowl is also improbable if Baxter had decided, whilst smoking it, to set a fire in the shower recess of his cell. The obvious place to dispose of the tea bag cigarette would have been the shower recess, as it could have provided another ignition source. If Baxter decided to set a fire in his cell after he had smoked and disposed of the tea bag cigarette, that would reduce the already short time available to move the materials and set the fire and for it to take hold. Further, keeping the wick alight on the bench is inconsistent with him deciding, whilst or after smoking the tea bag cigarette, to set the fire. The obvious inference is that he kept the wick burning because he always intended to set a fire in his cell. In addition, the fire investigator gave evidence that there were no scorch marks or indications of any fire having burnt on the two benches or desks in Baxter’s cell. That is important objective evidence inconsistent with Baxter’s evidence about what he did with the lit wick.
Baxter gave evidence that he had not, before that evening, smoked a tea bag cigarette. That was inconsistent with his evidence that, after he (Baxter) yelled out for a light for his tea bag, the applicant said ‘that he’d like me to do something for my tea bags habit’. The use of the word ‘habit’ is improbable if Baxter had never smoked a tea bag cigarette before. Baxter gave evidence that he tried to get a light for the tea bag by, first, putting some foil into the power point in his cell, which shorted out the power, and then by calling out to anyone for a light to which the applicant had responded that he would provide one. The CCTV footage showed that he and the applicant then spent some 45 minutes casting out the fishing lines from their cells into the 10 metre wide corridor to get them to hook up so the applicant could provide him with a light. It is improbable that Baxter would go to such time and effort only to smoke a tea bag cigarette, when he had never done that before, and then to only take four puffs on the cigarette before abandoning it. It is also improbable that the applicant would go to such time and effort only to provide Baxter with a light for a tea bag cigarette.
These matters formed a rational and reasonable basis upon which to reject Baxter’s evidence that he only wanted the wick to smoke a tea bag cigarette, that he only asked the applicant for a light to do so, and that it was only after the applicant had provided the wick that Baxter decided to set a fire in his cell. These matters would permit a finding that Baxter was not a credible witness and that his evidence about these things was untrue. These matters, particularly the time and effort engaged in by the applicant in hooking Baxter’s fishing line and lighting the wick, were also a rational and reasonable basis on which to find that the applicant was aware of Baxter’s intention to set fire to materials in his cell intending or being reckless as to causing damage to the building, and that the applicant intended, by providing the lit wick, to aid Baxter to do so.
Baxter gave evidence that it took about one or two minutes to link up his and the applicant’s fishing lines. As already noted, the CCTV footage showed that it actually took around 45 minutes. That is a substantial difference between Baxter’s evidence on that point and the objective evidence. His evidence about that was clearly unreliable, supporting the finding that Baxter was not a credible witness.
Going back then to Baxter’s evidence about which of the agreed facts were true and which were not, when initially asked whether the facts in Exhibit P2 were true, he said not all of them. When asked to indicate which ones were not true, he said the facts about Hyde. He said there was nothing else in Exhibit P2 that was not true and confirmed that the rest of the facts in Exhibit P2 were correct. He said he did not know whether the facts relating to Hyde were true or not. When asked about paragraph 7 of Exhibit P2, which referred to his attempt to create an ignition source ‘in order to start a fire in his cell’ using the power point, he said that was to light the tea bag cigarette. When asked about paragraph 8 of Exhibit P2, which referred to Baxter and the applicant agreeing to work together to set a fire in Baxter’s cell, his evidence was initially unresponsive, and his answer, ‘No like making lies init’ was confusing, but ultimately he said that the agreement between him and the applicant was ‘in the document but it wasn’t the plan’. This was evidence which the jury had the advantage of seeing Baxter give, which is not an advantage available to this Court on appeal. Baxter’s evidence about the truth of the agreed facts in Exhibit P2 was internally inconsistent and would permit a finding that his evidence about it was unreliable, and that what he had relevantly agreed to for the purposes of his own guilty plea represented the true state of affairs.

One of Baxter’s explanations for the difference between his evidence at the applicant’s trial and the agreed facts in Exhibit P2 was that he was only agreeing ‘for himself’. Counsel for the applicant argued that what Baxter meant by that was that he was only agreeing about his own conduct and not about the conduct of anyone else. If that is what Baxter meant, that evidence is an improbable explanation in relation to the critical paragraph in Exhibit P2 that Baxter and the applicant agreed to work together to set a fire in Baxter’s cell. That is not a fact which it was possible for Baxter to agree to only for himself because it is about an agreement between Baxter and another person. It cannot be separated into Baxter’s conduct and another person’s conduct. It is a fact about joint conduct and the meeting of two minds.

[100]Counsel for the respondent argued that what Baxter meant by his evidence was that he was agreeing the facts were true for the purposes of his own proceeding, but was not prepared to give that evidence in the case against the applicant. If that is what Baxter meant by his evidence, it is consistent with his evidence that he was not the kind of person who would say something that would get another prisoner into trouble. That inference provides a plausible explanation for the difference between his evidence and the agreed facts about the applicant in Exhibit P2. The most rational inference is that Baxter had no qualms about representing on his plea on the Friday before the trial, in the absence of the applicant, the fact that the applicant had agreed to assist him to set a fire in his cell, but on being faced with the applicant and giving evidence at his trial the following Monday, Baxter baulked at giving that evidence and gave a different version of events. The fact that there were only three days between the plea and the trial does not detract from the availability or rationality of that inference. The critical matter is Baxter having to face the applicant in court and give evidence in the applicant’s trial about the facts he had agreed on the plea.
[101]Baxter’s evidence that he accepted the agreed facts because he was tired and just wanted to get the plea over and done with is also improbable when Baxter gave evidence that he knew the sentencing Judge would take the facts into account in sentencing him, and he knew he was facing a ‘big’ sentence. This was a basis on which to reject his evidence about an undiscriminating plea, in addition to the other bases referred to above on which Baxter could be found to be an unreliable witness.
[102]Based on our assessment of the whole of the evidence, particularly the improbabilities referred to above, we find that it was not reasonably possible that Baxter’s evidence that he only wanted a light for a tea bag cigarette, and that he asked the applicant for a light for that purpose, was true, such that there was a reasonable doubt as to the applicant’s guilt on the basis of his intention to aid Baxter to set a fire in his cell. We are not satisfied that the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. On our independent review of the evidence, we also do not harbour any such doubt.
[103]We note that this conclusion does not depend on either:
(a) the evidence potentially admitted in breach of legal professional privilege (Exhibit P1 and Baxter’s evidence about it); or
(b)the evidence about Hyde the subject of Ground 4 below, which we have found renders it more likely that the applicant knew, when he passed Baxter the wick, of Baxter’s intention to set a fire in his cell and intentionally or recklessly cause damage to the building.

[104]It is therefore unnecessary to consider whether the alternative pathway to guilt was unreasonable or not supported on the evidence.
[105]For these reasons, we would grant an extension of time and leave to appeal, but dismiss this ground of appeal.
Ground 4 – Did the evidence about Hyde result in a miscarriage of justice?
[106]As referred to above, counsel for the applicant argued that the references to Hyde in Exhibits P1 and P2, and the evidence of the officer in charge about Hyde setting two fires in his cell, one at around 10.53pm and one at around the same time as Baxter, had no probative value because it was irrelevant, and raised the danger of unfair prejudice to the applicant within the meaning of s 137 of the ENULA.
[107]The ‘probative value’ of evidence is defined to mean the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (Dictionary).
[108]Counsel for the Crown argued that the evidence about Hyde lighting a fire at 10.53pm in his cell, which was next door to Baxter’s cell and opposite the applicant’s cell, was evidence which could rationally affect the assessment of the probability of the existence of the fact that the applicant was aware of, or at least reckless as to, Baxter’s intention to set a fire in his cell and intentionally or recklessly cause damage to the building. That would require, first, an inference that the applicant was aware of the fact that Hyde had set the fire in his cell. On the evidence that the cell occupants could communicate with each other (as shown by the passing of fishing lines between the cells), and the proximity of Hyde's cell to Baxter’s and the applicant’s cells, that inference was reasonably open.
[109]The inference that the applicant was aware of the fact that Hyde set a fire in his cell would have some probative value in determining whether the applicant was at least aware of a substantial risk that Baxter intended to use the wick provided by the applicant to set a fire in his cell and intentionally or recklessly cause damage to the building, ie the first limb of the test for recklessness.
[110]Counsel for the Crown argued that the evidence about the second fire in Hyde’s cell, which was discovered after the fire in Baxter’s cell was extinguished, was relevant and necessary to explain the evidence of the fire investigator about a burn mark on the ground outside and between Hyde’s and Baxter’s cells, and to remove speculation that the fire in Baxter’s cell was lit by Hyde. There was also evidence from the attending Correctional officers that, after they dealt with the fire in Baxter’s cell, they attended to a fire in Hyde’s cell. We accept that the evidence about the second fire in Hyde’s cell had some probative value in explaining the evidence of the fire investigator and the Correctional officers.
[111]The unfair prejudice raised by counsel for the applicant was the jury improperly reasoning that what Baxter and Hyde had done was not a coincidence, and that each was aware of the other’s intent to set fire to their cells. It would follow from that reasoning that Baxter’s evidence about asking the applicant to give him a ‘wick’ to light and smoke a tea bag must have been a lie, and the applicant must also have been aware of Baxter’s and Hyde’s intentions. It was said, essentially, that the jury could have reasoned that the three of them were ‘all up to no good’. The probative value of Exhibit P1 and Exhibit P2 was said to be outweighed by the danger of the jury reasoning that way.
[112]Exhibit P1 included the paragraph that Hyde ‘made the decision on his own to set fire to his own cell’. That was repeated in Exhibit P2. The improper reasoning referred to by counsel for the applicant would have required the jury to completely ignore that paragraph. Why the jury might have done so was not explained. In the circumstances, there does not appear to us to have been any real danger that the jury would ignore that paragraph, focus on the other evidence about Hyde, and reason in the way submitted on behalf of the applicant.
[113]The immateriality of any such risk is confirmed by the failure of defence counsel to raise any objection to the admission of the evidence about Hyde on the basis now contended on appeal, or to seek any direction from the trial Judge about it. Equally telling was the failure of defence counsel to raise this as a ground of appeal in the affidavit in support of the application for leave to appeal, which was filed 18 months after the trial. The failure to raise the matter at trial, and then subsequently with the benefit of close examination of the proceedings for the purposes of preparing an application for leave to appeal, suggests that there was no real risk the jury would misuse that evidence in the way now asserted.[20]
[114]It follows that the probative value of the evidence about Hyde starting the two fires in his cell is not outweighed by the danger of unfair prejudice to the applicant.
[115]We would refuse an extension of time and leave to appeal on the basis that this ground is not properly arguable.
Disposition
[116]We make the following orders:
1.The applicant is granted an extension of time within which to make application for leave to appeal, and leave to appeal, in relation to grounds 1, 2 and 3, but the appeal on these grounds is dismissed.
2.The applications for an extension of time within which to make application for leave to appeal, and leave to appeal, in relation to ground 4 are refused.

_________________________

[3]See Barr v The Queen [2003] NTCCA 2.

[4]Hyde subsequently pleaded guilty to a charge of arson arising out of the incident. On 26 November 2021, he was sentenced to imprisonment for three years after discount for his plea of guilty.

[5]Fault elements for a physical element may be intention, knowledge, recklessness or negligence: Criminal Code, s 43AH(1).

[6]Criminal Code, s 43AA(1) and Schedule 1.

[7]‘Intention’ is defined, in relation to a result, to mean that the person means to bring it about or is aware that it will happen in the ordinary course of events: Criminal Code, s 43AI(2).

[8]‘Recklessness’ is defined, in relation to a result, to mean that: (a) the person is aware of a substantial risk that the result will happen; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk: Criminal Code, s 43AK(1). If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element: Criminal Code, s 43AK(4).

[9]Bruce v Williams (1989) 46 A Crim R 122 at 129 per Priestley JA; Ancuta v The Queen (1990) 49 A Crim R 307 at 312-313 per Lee J.

[10]The term ‘prohibited thing’ is defined in s 175 and s 4 of the Correctional Services Act to include (relevantly): (i) a thing that might reasonably constitute a threat to the security and good order of a custodial facility or a prisoner; (ii) a thing that it is reasonable to infer from possession of it, an intention to facilitate, incite, or use the thing in connection with, an unlawful activity; and (iii) a thing that may have a detrimental influence or effect on a prisoner.

[11]Director of Public Prosecutions (Vic) v Bourbaud [2011] VSC 103.

[12]See, for example, Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108 at [21]-[22] per Heerey J; Nichia Corporation v Arrow Electronics Australia Pty Ltd (No 3) [2016] FCA 466 at [18]-[19] per Yates J; French v Bremner [2019] NSWSC 1033 at [252], [259] per Parker J.

[13]It is not captured by s 60(3), which provides that s 60 does not apply in a criminal proceeding to evidence of an admission. See ENULA, Dictionary, definition of ‘admission’ and Power v The Queen (2014) 43 VR 261 at [66] per Redlich JA and Robson AJA.

[14]See also Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

[15]The respondent submitted it was arguable that Baxter had impliedly waived his legal professional privilege, but did not press the Court to make that determination.

[16]See The Queen v Solomon [1978] 1 ACR 242 at 253 per Moffitt P, at 247-249 per Street CJ.

[17]The Queen v Lisoff [1999] NSWCCA 364 at [60].

[18]Libke v The Queen (2007) 230 CLR 599 at [113] per Hayne J, approved in Pell v The Queen (2020) 268 CLR 123 at [44]-[45] and M v The Queen (1994) 181 CLR 487 at 494.

[19]Lynch v The Queen [2020] NTCCA 6 and the authorities there cited.

[20]See, for example, The Queen v Gallagher [1986] VR 219 at 237 per Young CJ, Kaye and Gray JJ and Bou-Elias v The Queen (No 1) [2012] VSCA 61 at [26] per Mandie JA, cited in Power at [23] and [38]. See also [85] of Power where a failure of defence counsel to request the trial Judge give a direction as was the subject of complaint on the appeal was held to ‘strongly’ suggest ‘that [the impugned evidence] was not merely perceived to be evidence that would work no unfairness to the appellant but that it was rightly recognised that such a direction would work a real disadvantage to the appellant’ by drawing attention to it.