McNamara v The King - [2023] HCATrans 61

[2023] HCATrans 061
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S143 of 2022
B e t w e e n -
GLEN PATRICK McNAMARA
Appellant
and
THE KING
Respondent

GAGELER ACJ
GORDON J
STEWARD J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 16 MAY 2023, AT 10.00 AM
Copyright in the High Court of Australia
MR G.O’L. REYNOLDS, SC: May it please the Court, in this matter I appear for the appellant with my learned friends MR G.D. WENDLER and MR D.A. WARD. (instructed by Kings Law Group)
MS S.C. DOWLING, SC: Your Honours, I appear for the respondent with my learned friends MR E. BALODIS and MS A.L. BONNOR. (instructed by Director of Public Prosecutions (NSW))
GAGELER ACJ: Thank you, Ms Dowling. Mr Reynolds.
MR REYNOLDS: Your Honours, at our outline – and I am going to stick fairly closely to the order of it – your Honours will see that I start paragraph 2 with a summary as to what the courts below held. I will come to that in a moment. The way the courts below applied this discretion was very different from the way your Honours are normally used to seeing that discretion applied. In more than 999 cases out of 1,000 the discretion is applied to reject evidence adduced by the prosecution as against the defendant, that is, if the discretion is applied.
Now here, we have what is, on the case law, a most unusual situation where you have evidence adduced in a joint trial by one defendant, the other defendant objects to that evidence and says that the probative value of this evidence in D1’s case – I will call them D1 and D2, if that is convenient – the probative value of this evidence in D1’s case is outweighed by the prejudicial effect on D2. The result of all of this, when the discretion was exercised, was that this evidence was totally excluded from the trial. It was not excluded only, for example, as against D2. Now ‑ ‑ ‑

GAGELER ACJ:   And you say it could have been excluded against D2 under section 136, is that the way you put it?
MR REYNOLDS:   Or under 135, more, perhaps, relevantly to the argument that I am ‑ ‑ ‑
GORDON J:   But that argument is that 135 does not apply on your first ground. Your argument is that 135, it does not apply in this circumstance.
MR REYNOLDS:   Exactly.
GORDON J:   And then, the second bit is 136 – is the subject of direction in 136 as to use – are they separate?
GAGELER ACJ:   The question is, how would it be excluded against D2?
MR REYNOLDS:   Well, I am dealing at the moment with section 135.
GAGELER ACJ:   My question arose directly out of the way you were putting your submission.
MR REYNOLDS:   We perhaps, put it this way – what we say should have happened here, when there was an application made under section 135, D2 objects to the evidence which my client, D1, seeks to adduce. At that point, the appropriate mode of proceeding is for the judge to say to the Crown, what is your position on this, Madam Crown? Do you wish to rely on this evidence as part of your case against D2? Now, it is clear from the transcript that the Crown said, no, we do not. So, the correct ruling would have been, in that situation, that the evidence was excluded from the case as between the prosecution and D2.
GAGELER ACJ:   Under a provision of the Evidence Act?
MR REYNOLDS:   No, simply because the Crown indicates that it is not seeking to rely on that evidence as against D2. It is of the very nature, we submit, of a joint trial, that that is the way it operates. So, to take the converse, where prosecution is adducing evidence, that evidence may be that no one may object, but if either of the two defendants object, then that issue, in a joint trial, is dealt with in relation to both defendants, separately, vis-à-vis the prosecution.
So, to give an example, if D1 seeks to exclude the evidence, D1 can say that is not relevant to the case against D1, or there is a rule of exclusion that applies, or that as between what I will call “P”, P and D1, the evidence should be excluded because the probative value of it in P’s case is exceeded by the prejudicial effect on D1. So, that is how it would operate.

That is only dealing with one defendant, but the same applies to the other, and this goes, I submit, fundamentally to how a joint trial operates at common law, which I am going to be coming to, perhaps in the latter half of my submissions. But can I note two things. That in both of those examples – or in all those examples – if evidence is excluded, it is only between the Crown and one defendant. It may also be excluded as between the Crown and the other defendant, but there will be a separate exercise of the discretion based on the probative value of the evidence in each of those cases as against the prejudicial effect on the particular defendant which, of course, may be different. But the ultimate ‑ ‑ ‑

GAGELER ACJ: Which arises, as I understand your submission, only if the Crown seeks to rely on that evidence against ‑ ‑ ‑
MR REYNOLDS: That is right.
GAGELER ACJ: ‑ ‑ ‑ that accused.
MR REYNOLDS: That is right. It is what, in one of the cases, Baron Parke called tacking. So, the position is that if this evidence which – we are dealing with a situation after the Crown has closed its case against both defendants and then one of the defendants goes into evidence, and if there is an objection by another defendant, the appropriate procedure is to clarify whether the prosecution wishes to tack that evidence onto its case. If the prosecutor does not wish to do that, then the judge will say to counsel for D2, in our situation, well, Mr Smith, you need not worry about that, it is not admitted against your client.
But if the Crown does seek to tack, that is, to rely upon that evidence in the prosecution case against D2, then it is open to counsel for D2 to make the usual objections to the evidence, including, relevantly, that it wants the evidence excluded because the probative value of the evidence D1 seeks to lead when assessed as part of the prosecution case, not D1’s, is outweighed by the prejudicial effect on D2.

So, instead of operating – your Honours may remember me sticking my fingers up like this at the beginning – instead of operating in this discordant, unconnected way, this is a binary equation. You look at the probative value or rationality of the evidence for the prosecution as against – and I will come to this a bit later – the possibility of irrational dealing on the part of the tribunal of fact, the jury with that evidence, and you then measure one against the other and you then get a relationship between those two concepts.

GLEESON J: Mr Reynolds, at some stage I think it would be helpful to me to understand how that submission fits with section 56 of the Evidence Act which says that:
evidence that is relevant in a proceeding is admissible in the proceeding.

You do not have to deal with it right now.
MR REYNOLDS: No, but just to perhaps anticipate things, your Honour, we submit that the way that section works – section 56 – is that when it talks about a proceeding it is dealing with the proceeding, in this case, that there are two proceedings: one, P versus D1; and the second proceeding, P versus D2, and that evidence is admitted in accordance with the principles of relevance separately in both proceedings because, as we will come to later on, the issues are different, or are often very different between, on the one hand, the D1 and P and on the other hand, P and D2.
So, that is – but in order to get that issue of the way 135 operates, your Honours will see that we do our best to erect reasons why section 135 would not be construed as the courts did below. We listed in paragraph 3, and this is the first preliminary point that I have to make in order to establish a number of my other submissions, is that, at common law, we submit, it is clear, or at least tolerably clear, that in the situation we are discussing, the discretion does not apply.

I am not going to go through it, as I said in the footnote to the submissions, I am not going to go through all of these cases, but I would like to make a few basic observations about the status of these cases and which Courts have decided what, and when, because the issue of when becomes relevant, taking into account that this particular act was enacted on 19 June 1995. So, we are looking at the common law both generally but also in terms of what it was in 1995, when this Act was enacted.

JAGOT J: Could I just ask, sorry – are you – this is probably getting ahead of myself because you are going through the background up to section 135 – but are you reading section 135, you say, in its context, in a sense, as:
The Court may refuse to admit evidence –

I am reading in the words – against a “party”:
if its probative value is –

et cetera, and might:
(a)be unfairly prejudicial to –

the party? Is it, the way you put that about D1 and D2 in a criminal case is saying, well, it is really limited to the party ‑ ‑ ‑
MR REYNOLDS: Well, sorry, your Honour ‑ ‑ ‑
JAGOT J: ‑ ‑ ‑ the way the probative – well, you are putting the probative versus prejudicial, it is always probative – what, in the prosecution’s case, or in the parties’ case against the prosecution – as opposed to prejudice of the defendant in a criminal proceeding. That is the only weighing you can do. You cannot weigh probative value for D1 against prejudicial effect on D2.
MR REYNOLDS: Your Honour, we do say that D1 and D2 are not parties to each other’s cases, and I will be coming to that.
JAGOT J: That is the pure construction issue.
MR REYNOLDS: Yes, but there is – it is a more, kind of, fundamental thing than, as it were, just construing words in this particular section. It is the way a joint trial, which is, we would submit, sui generis, in our law, the way a joint trial operates is that determinations about admissibility are made, at least notionally, by the trial judge, separately in relation to each item of evidence in – if there are two defendants – each case.
GORDON J:   That might be accepted though – that is the proposition. In other words, here we have got evidence which is admitted to be relevant, that is, your evidence that your client sought to adduce was relevant.
MR REYNOLDS:   Yes, to his case.
GORDON J:   To his case. That is the question and the question that arises is, well, is it to be admitted against both? The co‑accused says not against me, thank you. And the question which arises is whether or not your client’s ability to lead evidence in its defence is to be curtailed and, if so, how and why? That is the question. The question is whether 135 applies and, if it does, then a certain consequence follows. If it does not, another consequence follows.
MR REYNOLDS:   Yes.
GORDON J:   Are we right about that?
MR REYNOLDS:   That is what we start with as your Honour, sees in paragraph 3, which is the concept of a right – I am sorry, in paragraph 3 with what the position is at common law and – I will not be long on this but I do need to get out a few points about ‑ ‑ ‑
GAGELER ACJ:   Have you finished with proposition 2?
MR REYNOLDS:   In paragraph 2 ‑ ‑ ‑
GAGELER ACJ:   Paragraph 2, you said you were going to say something about it.
MR REYNOLDS:   I have ‑ ‑ ‑
GAGELER ACJ:   Thank you.
MR REYNOLDS:   ‑ ‑ ‑ although I will be coming back to it. So, when your Honours look – and the purpose of listing all those cases, which is a bit unusual, in the synopsis is – to be candid, I do not think this was adequately dealt with in the submissions on either side in this case or, for that matter, and importantly, by the Court of Criminal Appeal. So, when one looks – we have done our best to list the principal cases – but we submit this is a pretty impressive array starting with – most of these cases refer back to a decision in the Hampshire Assizes by Justice Devlin – when he obviously was a puny judge – and they all seem to cite that.
You then get various – in the United Kingdom, if your Honours go about two‑thirds of the way down, there is a case called R v Randall, in the House of Lords, which deals with this very clearly – that is six lines from the bottom. You got other cases there from the UK – it is clear, we would submit, that is the position in the United Kingdom – there are Privy Council cases. In line 4, there is Lowery, which was on appeal from Victoria. There is also Lobban, which is in 1995 – about eight lines down – I think that was on appeal from Jamaica.

But perhaps most importantly, if your Honours go to the fifth line down, your Honours will see R v Murray and R v Visser. Now, these are two decisions of the New South Wales Court of Criminal Appeal, and we are interpreting a New South Wales Act, after all. The position, we submit, in New South Wales prior to the enactment of this Act was very clear, and it was decided in both of those cases that this kind of discretion just did not exist.

Now, I am not going to go through all of these other than to note that, four lines up from the bottom, Justice Keane was of this view as a judge of the Queensland Court of Appeal, and there is also a reference three lines from the bottom to Justice Nettle sitting as an acting judge in New South Wales. West Australia and South Australia are also covered – there is a New Zealand case there in the Court of Appeal – and Lui Mei Lin in about line 6 is a Hong Kong case.

So, your Honours have a pretty good handle from that list about how prevalent this view is within, really, all around the common law world, and when your Honours have the opportunity of looking at these cases, the judges who deal with this principle are dismissive of the contrary view. This is not a situation where the judges get out the books and there is hand‑wringing anguish – and on the one hand, on the other hand – this is just – whack – it is clear that this discretion just does not exist. I will be coming to some further reasons why they are so dogmatic about it in the next segment of my submissions.

But, just to finish off with the common law, certainly before 1995, the only decision that has been read the other way – this is paragraph 4 of our outline – is the decision in R v Darrington. But what your Honours will see from that paragraph – and your Honours have seen this many times over the years with a particular decision, where it is heavily qualified, distinguished out of existence, marginalised, treated as a highly‑exceptional case or is very unusual or, if you go to the end of paragraph 4, second‑last line, they cast doubt on it – “may perhaps”. It is a very long way, in my respectful submission, from a glowing endorsement of this ‑ ‑ ‑

STEWARD J:   Does that mean that you accept the discretion exists, but it is diminished greatly?
MR REYNOLDS:   No, your Honour, I do not accept that ‑ ‑ ‑
STEWARD J:   So, does that mean Darrington was wrongly decided?
MR REYNOLDS:   If this were a case about the common law, we would have to go down that path and I would have to take what I would call a full tilt at it ‑ ‑ ‑
STEWARD J:   Because, as I understand your submission, you never get to a situation where you are balancing the interests of D1 against D2.
MR REYNOLDS:   No.
STEWARD J:   It is D1 against P, D2 against P.
MR REYNOLDS:   Exactly.
STEWARD J:   Whereas the way I read Justice Jenkinson’s reasons in Darrington, is that he does conceive of a situation where you do need to – in a joint trial – measure up the conflict between the interests of D1 and D2.
MR REYNOLDS:   Your Honour, I really would love to get into that but, as I say, I have taken the view that, other than making a few brief points about it ‑ ‑ ‑
STEWARD J:   But you might say – if you are right about section 56 and there being two proceedings – under the Evidence Act (NSW), you must be right.
MR REYNOLDS:   Yes.
STEWARD J:   Yes.
MR REYNOLDS:   If that is case. But, as I said a while ago, what I am trying to do is raise problems for the Crown in their approach. The first stake in the ground is to say, at common law this is clear and, particularly, it is clear in 1995 and particularly clear in the State of New South Wales before 1995 – there is no such discretion. I need to lay that peg firmly in the ground in order to make a whole lot of other submissions. If your Honour Justice Steward, would like me to say something briefly about Darrington, I am in a position to do so, if your Honour would be ‑ ‑ ‑
STEWARD J:   It might be useful, but keep it brief.
MR REYNOLDS:   If I would give your Honour, as it were, just a ‑ ‑ ‑
GORDON J: Could I ask this question. Could you tell me what you think is your high-water mark on this proposition? That is, that the discretion does not exist, as at 1995. Because there is a long list here, and I – if one goes back to Lord Devlin’s decision in Miller, which is a long way back – so if we are really looking at the position at 1995, as I understand your argument, what do you think is the high‑water mark?
MR REYNOLDS:   Your Honour, I have an embarrassment of riches, but if pressed ‑ ‑ ‑
GORDON J: Just one would be good.
MR REYNOLDS:   If pressed, as I said a moment ago, probably I would be emphasising those two New South Wales Court of Criminal Appeal cases ‑ ‑ ‑
GORDON J: Right.
MR REYNOLDS:   ‑ ‑ ‑ because they are local. Although, there are other cases, but ‑ ‑ ‑
GORDON J: So that is Murray and Visser, is it?
MR REYNOLDS:   Yes.
GORDON J: Thank you.
MR REYNOLDS:   And they are clear.
GAGELER ACJ: And, presumably, they are relying on the Privy Council in Lowery, are they?
MR REYNOLDS:   More relying on Miller, actually, but some of the cases do refer ‑ ‑ ‑
GORDON J: So, is it that we go back to Miller, do you think? Because Miller was really dealing with the obligation of defence counsel ‑ ‑ ‑
MR REYNOLDS:   Yes, yes.
GORDON J:   ‑ ‑ ‑ was it not, and saying, defence counsel has an obligation to ask questions regardless of whether it prejudices the co‑accused. So, it is a different sort of lens through which you are looking.
MR REYNOLDS:   Yes. Well, that is one of the reasons why, if your Honours look at paragraph 5, we did not actually include a quote from Miller, even though it is mentioned in the third line, because there is that caveat about it. But that is how it has been interpreted, and the proposition that Justice Devlin articulates is pregnant with this same notion of a right that an accused has.
Just to get back to what your Honour Justice Steward asked me about, because I do not what your Honour to think that I did not at least direct some attention your Honour’s way on that. Can I give your Honour just a brief list of possible issues with Darrington. One, before I forget, is that Chief Justice Young, who has a one or two‑line concurrence, he, in one of the later decisions – I think it was the R v Gibb – mentioned in paragraph 4, he clearly had some reservations about that concurrence, perhaps in conformity with statements one hears from judges about always regretting concurring with judgements written by other people. But just to go ‑ ‑ ‑

GAGELER ACJ: Well, Mr Reynolds, if your point is that the cases in paragraph 3 make your essential propositions clear as a bell, then you have to say either that Darrington is either wrong, or has been misunderstood, or can be explained on some other basis.
MR REYNOLDS: With respect, your Honour, I do not have to, but I will, if your Honour wants me to, go down this line. I do not have to because what I am trying to establish is what the common law was in this country as at 1995, and it is sufficient, I would submit, for my purposes, to refer to the decisions in paragraph 3, as it were, down to and including 1995. However that may be, I will say something now about Darrington to allow for the possibility, perhaps probability, that I am not correct about that.
GORDON J: Just before you do that, can I just ask one question about a decision which is often quoted, which is Lowery (No 3) in Victoria.

MR REYNOLDS:   Yes. Well, that is there in the third line.
GORDON J:   Yes. In that case Justice Jenkinson was dealing with it and they explain at 947 a distinction being drawn between evidence which is sought to be adduced by the Crown as distinct from that which is being sought to be adduced by the accused in his own trial. Is that contrary to the way you are putting it to us now?
MR REYNOLDS:   I would submit not.
GORDON J:   The reason being is they seem to suggest that the considerations might be different, is the way in which the Full Court describe it, to the point where they say, in the latter case when the accused is seeking to lead the evidence:
one important differentiating consideration is the need for the accused person to be left unfettered . . . by any legitimate means –

and then they go on to consider what the legitimate means might be, which is, in effect, the phrase being picked up later on and sought to be explained.
MR REYNOLDS:   Yes, it has.
GORDON J:   Do you take issue with that kind of analysis, that line of authority?
MR REYNOLDS:   Your Honour, ultimately we say that to focus on the word “legitimate” in that context is a technique perhaps appropriately deployed by a judge at first instance, or a busy Full Court, in dealing with a complicated issue as a way of dealing with it in accordance with authority, but that it is not an approach which would commend itself to a court of appeal taking a deep dive on the issue and dealing with the matter, stopping to inquire – as Sir Owen used to say – in detail about this issue. But I know very well the case your Honour is referring to and your Honour would understand there are a number of reasons why I have looked at it. We submit that whilst that is the sort of thing that one would find in that situation, that is not ultimately a technique your Honours would employ to get around this proposition.
STEWARD J:   Can I ask you this, Mr Reynolds, on this issue – and you may be about to deal with this, but Justice Jenkinson says in the essence of his reasons:
the probative value, rationally considered, of a particular part of what this Court comprehended in the passage quoted from R v Lowery –

in the Privy Council:
by the expression “all legitimate and relevant means” may in some cases be assessable by the trial Judge as slight enought to justify, in my opinion, subordination of the interest of the accused who seeks to utilize that particular means of defence to those other interests which the system of trial of criminal issues by jury is designed to serve.

It is a little wordy but, at the end of the day, the question is do you think it is wrong or do you accept it is wrong?
MR REYNOLDS:   Wrong.
STEWARD J:   Okay.
MR REYNOLDS:   Let me be clear. But that is a judge dealing with Lowery in the Full Court and, frankly, also Lowery in the Privy Council, which were seriously considered dicta, as would be said these days, and it is a sort of sidestep, if I may be blunt – put on the earlier statement in those two cases – which will not withstand critical examination.
Just going into that with your Honour Justice Steward for a moment, what – I ask rhetorically – would be illegitimate about an accused in his defence adducing relevant and probative evidence which is admissible? Now, if you are in a courtroom you would say to your opponent if you are adducing that evidence, what is illegitimate about that. That is the problem. It just transfers the debate into the interpretation of a word because it happens to have been used in a previous case. Of course, Justice Jenkinson is doing it – and I do not say this – I am not pouring scorn on it, but it is his way of getting around the earlier statement or, perhaps I should say, more accurately, accommodating his view or where he wants to go with the statement made in the previous case.

Now, as often, I am kind of back with an unanswered question with your Honour Justice Steward.

STEWARD J:   It happens in this Court.
MR REYNOLDS:   May I take the middle path by giving your Honour without, as it were, diving deeply into this area, a sort of checklist of things that I draws to your Honour’s attention.
STEWARD J: I have the first one about what Sir John Young said later on.
MR REYNOLDS:   Yes. A second one is that it is contrary, we would submit, to the dicta in the Full Court in Lowery and the Privy Council in Lowery. Next, there is not a discussion, going back to our list in paragraph 3, of Miller or of Neale, both earlier decisions. Next, there is not any – I withdraw that. The other thing that I would say about this case, or one other thing, is that if I could put it in summary form, the arguments that I am deploying were either in this – before your Honours which relate to both the common law and section 135, either were not deployed or were only dealt with in too brief detail. Next, that it has been doubted subsequently. Next, that it has been marginalised; that is, treated as exceptional or confined to its own facts.
Just pausing there, as a matter of judicial technique, your Honours know better than counsel what judges do when they are faced with a decision that they think is doubtful or that they think is wrong, but they do not want to have to deal with it in a judgment. Very often, they marginalise it or say, well, it may be the case, et cetera, and that is what has happened here.

Next, I think I am correct in saying that this decision was not actually approved prior to 1995. There is the decision in R v Gibb which says that such an exercise of discretion will be rare. Next, I do not think from my researches that there has ever been a direct challenge to this case. It has been distinguished, marginalised and doubted, but never overruled. So, it is not a situation where a full attack has been made on it, it survived the attack and remains good law. It is, we submit, an outlier in this realm of discourse, and I submit that it would be overruled if your Honours needed to consider the issue.

The other thing that I would draw to your Honours’ attention as questionable is on page 385, at about lines 39 to 40, is – and just to give your Honours a brief little bit of background, his Honour was faced with a decision where this evidence was excluded, and he found, relevantly, that it should not have been excluded. How does he handle it? That is, the judge. He says:

The circumstances . . . were –

such that:
in my opinion such as imperatively to require the exercise of the trial Judge’s discretion against admission of the evidence.

Now, that point was never taken below, and he is substituting that proposition for the judge’s ruling – wrong ruling, as he said – about admissibility, and he is saying, it is so clear as a bell that I can rule in the Full Court – this point not even having been debated below – that it must have been excluded, according to this discretion. I submit that is also questionable. Your Honour Justice Steward, I hope that is a kind of conspectus of some of the main points, perhaps not as well developed as it would have been, I would hope, if the common law was the main issue.
We go to paragraph 5. Your Honours will already have read that we say that one of the rationales for this principle at common law – and there are a number which I will be coming to – for not extending the discretion is, it would infringe the accused right to make full answer and defence to establish his innocence. Now, we have given your Honours – so that we do not have to dive into the cases – some gobbets from the decisions. Your Honours see that – this is on the third line – a reference in Murdoch to this right not being fettered; in Lowery in the Full Court:

an accused person to be left unfettered in defending himself by any legitimate means –

Then, in the Privy Council:
no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person.”

In Neale – that is Lord Justice Scarman, as he was at that time:
if this evidence were relevant either to the case against him or to his defence, he would be able, as of right, to extract it or adduce it –

another thing was decision in Thompson:
A defendant is always to call evidence . . . “in disproof of his own guilt” of the offence –

Lobban is in the Privy Council:
the accused, in seeking to defend himself, should not be fettered in any way.”

Just pausing there, there is not – again, as I said a little while ago, there is not any hand-wringing anguish here or expressions of doubt. This is straight up clear as a bell; this is clear, and there cannot be any argument about it.
Now, that is one of the reasons why the common law did not develop this way. There is, perhaps, a cognate principle we refer to five lines up from the bottom there. Your Honours will remember the decision of this Court in Alister on public interest immunity. It refers back to an earlier case that these statements in this Court – which I have forgotten – the proposition is that there is a high public interest when the weighing occurs on a public interest immunity argument. If the documents that are the subject of a claim for immunity are sought in order for an accused to attempt to prove his innocence, and that is a very strong public interest factor ‑ ‑ ‑

GAGELER ACJ:   But not overwhelming, as the outcome in Alister indicates.
MR REYNOLDS:   No, but again, there is a counterweight there.
GAGELER ACJ:   It is a balancing exercise.
MR REYNOLDS:   I am sorry?
GAGELER ACJ:   Alister says it is a balancing exercise.
MR REYNOLDS:   It is, no question. But in this field ‑ ‑ ‑
GAGELER ACJ:   Not a matter of right. It is not a case that particularly helps you, I think.
MR REYNOLDS:   Your Honour, perhaps I should not have diverted into that territory and ‑ ‑ ‑
GAGELER ACJ:   Perhaps another way of putting it is I am not sure it is your best analogy.
MR REYNOLDS:   Well, I shall stick with, as it were, cases that are bang on point. We submit in paragraph 5 that where you have a right of – and it is described as such – it is a right in relation to evidence. If your Honours go to section 9 of the Act, which preserves the operation of principles or rules of common law, notice the words “in relation to”, which are obviously broad words of dilation:
in relation to evidence in a proceeding to which this Act applies –

unless the rule or principle is excluded:
expressly or by necessary intendment.

Now, certainly as an exclusion expressly, that is not suggested, and to suggest that this Act operates by necessary intendment to exclude this right, we submit, is difficult. It is the sort of right, in any event, that would be caught by the principle of legality. So, that proposition, that is the first kind of barrier we attempt to erect in terms of difficulties for the Crown. The next is in paragraph 6. We refer to a decision which is in – your Honours should have a folder of – there are about two or three extra authorities.
GLEESON J:   Does the Court of Criminal Appeal refer to that passage in Cornwell?
MR REYNOLDS:   They do.
GLEESON J:   They do?
MR REYNOLDS:   Yes, they deal with it, and I will be coming to that in a moment, your Honour, if that is convenient. The decision in Cornwell – I am only going to refer to one paragraph, but it is (2007) 231 CLR 260. The relevant passage is in the joint judgment of Chief Justice Gleeson and Justices Gummow, Heydon and Crennan at paragraph 72. Sorry, your Honour the Chief Justice does not seem to have it. I think I can deal with it ‑ ‑ ‑
GAGELER ACJ:   Acting Chief Justice.
MR REYNOLDS:   Sorry, your Honour the Acting Chief Justice.
JAGOT J:   Sorry, could you just repeat that? I do not have that folder either, whatever it is. Can you just give the citation again?
MR REYNOLDS:   Cornwell v The Queen 231 CLR 260. The relevant paragraph is 72. Because it is only very brief, I think I can give your Honours the effect of this.
GORDON J:   Mr Reynolds, that assumes that you are right about your first proposition, does it not?
MR REYNOLDS:   No, not at all.
GORDON J:   In the sense that ‑ ‑ ‑
MR REYNOLDS:   These are standalone propositions.
GORDON J:   No, no, sorry, the proposition being that there is – if it was to alter what you say is the common law, it should have said so. That is what I meant.
MR REYNOLDS:   Basically, along those lines, what Cornwell says at paragraph 72, it talks about the Law Reform Commission being:
normally careful to indicate when it thought that its proposals would change the law significantly and, when it did so, it habitually strove to give very full justifications for making changes of that kind.

And, at the end of the paragraph, it says that:
The absence of any justificatory material of this kind in the ALRC Reports – or in the Report of the New South Wales Law Reform Commission . . . or in the Second Reading Speeches – tells powerfully against the accused’s construction.

So, your Honours can tell where I am going to go with this. It is the proposition at paragraph 6 that there is not any indication – either in the Law Reform Commission Reports or in the second reading speeches that the Commission was proposing or intending to change the law significantly and providing justification for making a change justifying the changes that it was making.
One would expect, in the light of the common law position we have adumbrated earlier in the synopsis that if either of the two relevant Law Reform Commissions or the Parliament was intending to make this, we submit, important change in the common law position then they would advert to it and deal with it. They would not – to pick up a phrase your Honour the Acting Chief Justice used, I think in the first paragraph of IMM – they would not just, without mentioning anything, transfer the problem across from the common law to the Act without saying anything, particularly where the – and this is also in, if your Honours pardon me for a moment, I think there has been a failure to provide the folders to your Honours. Sorry, I apologise, your Honours. Four of them. My apologies, I understood that – your Honours, this is just a brief bundle of two or three cases that we are going to refer to.

So far as the Law Reform Commission is concerned, there should be – I do not have a copy of it – but there should be something from the Law Reform Commission in there. There should be a page or two which, I think, is at ‑ ‑ ‑

GAGELER ACJ:   We have one page that covers paragraphs ‑ ‑ ‑
MR REYNOLDS:   At paragraph 957 ‑ ‑ ‑
GAGELER ACJ:   Yes.
MR REYNOLDS:   ‑ ‑ ‑ that contains the words that it is proposed to retain this judicial discretion in its conventional form, now, that is in report number 36 when it left the hands of the Law Reform Commission. There are some difficulties which the Court of Criminal Appeal adverts to in that there are subsequent changes before it is legislated. But the point that I am making is that, as of this point – at this stage – that is the way they are thinking. This is a very, very long way from adverting to a particular problem and saying that this is something that needs to be dealt with and we are going to deal with it, and here is how we deal with, and this is how we justify this change in the law, which we do so advisedly.
GORDON J:   This is at a different point in time, but in the extrinsic materials that we were provided with, under tab 41, there is the 2005 ALRC report and, at paragraph 16.39, it points out that section 135 applies to both civil and criminal trials and identifies that:
Parties should generally be able to produce the probative evidence available to them –

but goes on to comment that:
courts should be particularly careful when considering evidence that might prejudice defendants in criminal trials.

Do you propose to address that aspect of that ALRC report at all?
MR REYNOLDS:   Not really, your Honour.
GORDON J:   Okay.
MR REYNOLDS:   That is after the Act, of course, has been enacted. We submit it is really neither here nor there in the interpretation of the Act. In particular, it does not affect the proposition I am seeking to make, as we have made it in paragraph 6 and, of course, this legislation in New South Wales is 1995.
The Court of Criminal Appeal – I do not really need to go to the judgment – does advert to this – as your Honour Justice Gleeson said, this argument – but, we submit that they make an error and the error is that they treat – this is at paragraph 540 – they treat the extant common law as being against my client, whereas, we submit – see paragraph 3 – that it was for my client, in particular, the New South Wales Court of Criminal Appeal has not referred or been referred to two decision of that very Court – not to mention, of course, the decision in R v Henry to which Acting Justice Nettle was a party.

So, as I say, what one would expect from scholars in this area, and this is not an unknown issue, is if they want to change what the position is, they direct themselves to it, they say this is the view we have taken, this is why we have taken it. We have taken account, for example, of the so‑called right of an accused to adduce evidence, we dismissed that for these reasons. We have taken account of the other arguments I am going to come to, but on balance we think that we need to make a change of the law, and here it is and there is the text and that is how it deals with it. And there is nothing ‑ ‑ ‑

GLEESON J: Is that not what is going on at the passage referred to at 525 of the New South Wales Court of Criminal Appeal?
MR REYNOLDS: Would your Honour pardon me for a moment? No. No, that is in the context of, as I recall, of similar facts. Also, to the extent that they float the possibility of that, there is not any indication that the Act actually achieves that or how it achieves that or justifying that. And, as I say, this is at the same time as in another part of the report it said that it understands that it is re‑enacting the Act in conventional form.
For reasons that, in part, that the Court of Criminal Appeal goes into, it is difficult to use these Reports, and I concede that, because the legislation, the text of the draft legislation varies a number of times, and you end up, finally, with a text that is not even identical to what the left the Law Reform Commission’s hands originally. But we are a very long way from ‑ ‑ ‑

GORDON J: Can I just pick you up on your answer to Justice Gleeson? I must say, I had thought that may assist you, because if you read the paragraph 811 – not that paragraph, but actually read the ALRC report in its entirety, in that paragraph, the passage that precedes it, which is not quoted by the Court of Appeal, reads something like:
Where it is a co‑accused, not the prosecution, who seeks to adduce similar conduct evidence –

So, it is in the context of similar conduct evidence, that is the qualification ‑ ‑ ‑
MR REYNOLDS: Similar fact, yes.
GORDON J:
the present law is correct in not requiring a threshold level of probative value, because of the concern that an accused be allowed to tender all evidence consistent with his innocence.

MR REYNOLDS: Yes, so it is just picking up – thank you, your Honour, your Honour is my diligent than I have been – but that sort of indicates, with all due respect, that the Law Reform Commission may have been, quote, a little bit all over the place on this. Certainly not clear and certainly not taking a considered position and seeking to justify it.
GAGELER ACJ:   Mr Reynolds, can I just go back really to the architecture of your argument and your reliance initially on section 9 of the Act.
MR REYNOLDS:   Yes.
GAGELER ACJ:   If we are concerned with section 9, then do we not start with the common law as it now exists?
MR REYNOLDS:   Your Honour, an old jurisprudential chestnut. The last time I looked at this, your Honour, it was in relation to the Constitution of Papua New Guinea, which, as I recall, imports the common law, I think, as at 1975. So, it is an issue which is looked at – has been looked at. But to address your Honour’s question directly, there is certainly an argument that the provisions of section 9(1) are ambulatory and that they take account of not only, as it were, the law frozen as at a particular date but also as it has developed subsequently.

But the point that I would make is that we – that is, my client – in a sense care nowt about that issue because whether it be as of 1995 or whether it be now, we say the law is clear, and clear in our favour, and it has at the most a little bit of a slight smudge in the margin – and I do not mean that in any deprecatory way of the decision in R v Darrington, but it is, as I said earlier, very much an outlier in the scheme of things, but I hope that is at least a partial answer to your Honour’s question.

Your Honours will have seen that the next proposition we have put is at paragraph 7, and there are a number of aspects to this but at bottom we talk about the many protections that are available to an accused person in order to – or in particular to a co‑accused to protect them against prejudice occasioned by evidence that is adduced by a co‑defendant.

There are a number of aspects of this, and I come to those protections and I will list them in a moment, but the effect of the existence of those protections is a reason, we submit, why this principle would never have been developed at common law so as to – that is, the discretion would never have been developed as common law so as to deal with this problem for the simple reason that it is already dealt with by other principles at common law. So much so that these other principles are directed precisely to this issue, address it in terms and seek not only to ameliorate prejudice, that is, to reduce it, but also to eradicate it or, as in one High Court decision I will be coming to, to obviate it.

So, what are the protections that I am talking about? Let me list them seriatim. The first thing is that there can be a pre‑trial separate trial application by an accused who foreshadows that another co‑accused will be leading evidence which is prejudicial to him or her. The second thing – and it is implicit in what I said to your Honours earlier, particularly to your Honour Justice Gageler – is the non‑admission of the relevant evidence as against, in my example, D2. So, even if D1 is allowed to – the case that the evidence is admitted in the case of D1 against the prosecution, it is not admitted in the case against D2, and the jury are told that.

The third thing is that – this is one of the two most important things – the directions that are given to the jury about the use of that evidence and, as your Honours appreciate, it is presumed that the jury follow those directions.

Fourthly, any warning or explanation that the judge gives for those directions, in other words, he may not only direct the jury not to have regard to that evidence, so here he will say members of the jury should not – when you are dealing with the case against Mr Rogerson, you should not be in any way considering this particular evidence from Mr McNamara. But to add to that – and your Honours would have seen this countless times from trial judges – judges pausing and saying to the jury, look, the reasons for that direction are that it would be – for example – most unfair to the accused Rogerson to take that into account; it has not been adduced against him. He had had no opportunity to deal with it; he has not been allowed to call contrary evidence, so you can understand why you should leave it out of any account of your judgment of Mr Rogerson’s guilt.

Fifthly, and this is also quite important, there will be, usually, in these situations, a warning given to the jury under section 165, where – this is under the Act – about the unreliability of a witness who is “criminally concerned in the events”. Now, if the ‑ ‑ ‑

GORDON J: I thought that was limited to witnesses?
MR REYNOLDS: Yes, well, that would apply, for example, in the situation we are looking at, to D1. You would say, well, either the evidence that has been given by D1 that has been admitted against Rogerson, I need to give you a warning about that, or perhaps – I suspect this may be what your Honour Justice Steward has spotted – is that even if the evidence has not been given, the judge would say, and if that evidence had been given, I would have given you a warning for this reason.
Next, I think I am up to six – I am sorry to do it this way – is that there can be a trial application for a separate trial. Now, that is very important, because if – the first thing that all the cases say is that the judge should deal with this precise question of prejudice flowing to one co‑accused because it is adduced in the case of another, first of all dealt with by directions and these other things that I have talked about. But if the judge forms the view that there is still some residual prejudice which obtains as a result of the admission of the evidence in D1’s case as against D2, then D2 can say, notwithstanding your Honour’s attempts to deal with this problem by direction and otherwise, there is still some residual risk.

The cases say that if there is that real possibility of prejudice, this precise form of prejudice, then the judge has to grant a separate trial application, even at that stage. Importantly, this is going to be a better remedy for any accused in Mr Rogerson’s position than seeking to have the evidence excluded. Why? Because all the cases say that these joint trials are full of prejudice of their very nature against the co‑accused in the case, and if Mr Rogerson had got a completely separate trial, then he would have had what I will call a prejudice‑free zone, whereas if he stays in the case and this item of evidence is ‑ ‑ ‑

STEWARD J: Can I ask you two matters about that? Firstly, in the case of your solution by direction ‑ ‑ ‑
MR REYNOLDS: I am sorry, I did not hear what your Honour was saying.
STEWARD J: That is all right. In the case of the solution, which is direction or warning of some kind, is that a situation where you accept that solution for D1 is adequate – the evidence comes in – but the solution for D2 might be described as suboptimal?
MR REYNOLDS: Your Honour, I think the case law says, potentially – or it may be – suboptimal, that is, you first ‑ ‑ ‑
STEWARD J: It is suboptimal in the sense that if there had been a separate trial, this evidence would have been wholly excluded, in the case of D2.
MR REYNOLDS: The way the cases address the issue is they say the judge must first look at whether or not the prejudice we are dealing with can be cured by a direction, then that can be the subject of directions and/or warnings. Now, if Rogerson – co-defendant – says, notwithstanding your Honour’s directions, there is still this prejudice, which is then identified, then the cases say in that instance then if there is that real possibility of prejudice, then, at that point, if there is an application, an order for a separate trial ‑ ‑ ‑
STEWARD J: That raises a different issue, which is a different discretion or balancing. On the one hand, the prejudice to D2, and then the public interest in awarding inconsistent verdicts, and so on. These are particular problems about joint trials where it is accepted that the prejudice to the co‑accused may sometimes be outweighed by the public interest of awarding inconsistent verdicts, and so on.
MR REYNOLDS: Yes. But, at any rate, your Honour, where it comes to an actual instance where it is clear that there is a real possibility of prejudice, we submit that in that instance, that there will be ‑ ‑ ‑
STEWARD J: Do we know why no application for separate trial was made here?
MR REYNOLDS: Because there did not need to be. There was – sorry – there was an application ‑ ‑ ‑
STEWARD J: I know there was pre‑, yes.
MR REYNOLDS: ‑ ‑ ‑ but it did not fully identify the evidence, that is, no application by ‑ ‑ ‑
STEWARD J: But there was no renewed application?
MR REYNOLDS: No.
STEWARD J: No.
MR REYNOLDS: Now, presumably ‑ ‑ ‑
GORDON J: On your way you put it, though, you would say there was no need to be, by your client.
MR REYNOLDS: Well, not by my client. No. But if Mr Rogerson had foreshadowed the problem, then he could have made an application. He can make an application right up to – just as long as it is done before delivery of the jury verdict. We submit that, that is also, as a practical matter, why I suggest – although I cannot cite the authority for it – why the common law never developed in this way to begin with, because, if you are an experienced trial counsel in crime, the nirvana in this context is the separate trial. You are not fighting on over a rats and mice issue – just a tiny bit of evidence here – you can get clean out of there, provided you can establish the relevant prejudice.
STEWARD J: But does all of this suggest there is some consideration by the judge of the interests of D1 against D2? They cannot be kept separate completely.
MR REYNOLDS: It depends on the context, your Honour. I submit that, in the context of admissibility, they can and must be kept completely separate – that is part of my argument.
STEWARD J: All right.
MR REYNOLDS: Can I complete the list, your Honours? There are cases for this, but I submit it is trite. Number seven is that there can be a repeal of the CCA on any of those issues, if there is a wrong exercise by the trial judge of a power, or discretion, fails or does not deal with it properly. Eighthly, there is the ultimate catch‑all in the Court of Criminal Appeal to appeal on the basis of a miscarriage, and there having been an unfair trial.
So, this whole system, in effect, has grown up to deal with this precise problem, a system that generates a result for a co‑defendant in Mr Rogerson’s position a much better result than simply knocking out one piece of ‑ ‑ ‑

GAGELER ACJ:   Mr Reynolds, you made the point that the issue arose in this case after the close of the Crown case ‑ ‑ ‑
MR REYNOLDS:   Yes.
GAGELER ACJ: ‑ ‑ ‑ where D1 seeks to lead evidence in‑chief. The same issue, or very similar issue could well arise in cross‑examination by D1 during the course of the Crown case. Do the solutions that you suggest apply equally in that scenario or are there other wrinkles?
MR REYNOLDS:   Your Honour, there are some cases that deal with this precise problem. They are not antithetical to the argument that I am putting. I could have a fist at trying to summarise them, the effect of them, but they are, from my recollection, much of a muchness with what I am putting to your Honour in relation to the current issue.
GAGELER ACJ:   I think I would be assisted.
MR REYNOLDS:   I would need – I doubt that I could do that over lunch, your Honour. I would be, with respect, more than happy to put in a list of references without annotation on that question. It is complicated by – before I forget, there is a statutory provision that impacts on this issue that was originally re‑enacted in a lot of the Australian States from a provision in the UK. But I would find that difficult to do over lunch, your Honour, I think it would be a ham‑fisted job if I did. But I do know where to start looking, and I have looked at that to some degree, duress as I was about that, but I, rightly or wrongly, decided that that is an issue which could be siloed in its own area, but it does not operate much differently.
GAGELER ACJ:   Your opponent may be referring us to section 20 and you may need to say something in reply about that. We will leave, for the moment, any question of putting in a note afterwards.
MR REYNOLDS:   Okay. So, your Honours should have a decision there in the folder of Caleo and this is a decision of the Court of Criminal Appeal in 290 A Crim R 352. The particular passage I wanted to take your Honours to is at paragraph 134 where there is a quote from Justice Toohey, Justices Mason and McHugh agreeing, and your Honours will see there is a quote there beginning “King C.J.”, and at the end of that paragraph beginning “King C.J.” there is a reference to directions and that this risk or prejudice might be “obviated” is the word that we underline – or, sorry, “must be obviated”.
The point, coming back to the Evidence Act, is what one would expect that – given the existence of these very full protections – deal with this very issue and a very well‑developed strain of jurisprudence, one would expect the legislature and the Law Reform Commission to have adverted to this to be justifying the position – this is referring back, of course, to Cornwell, and indicating why the view has been taken that, for example, if this how they want to go, that these protections do not provide enough protection or whatever.

The other aspect of this is that it is – if this discretion that we are talking about, whether that be at common law or under the Act – is exercised with due regard to the existence of these protections, it is difficult – I would say there is little or no prospect that the evidence would ever be excluded under this discretion. So that, one would not ascribe – your Honours would be loathe to ascribe an intention on the part of the legislature to introduce a form of protection which was otiose or near as be to otiose.

Why do I say that? If your Honours look at this discretion and the two parts of it, weighing probative value on the one hand, prejudicial effect on the other, and your Honours look at probative value – this is assuming the discretion is proprietary exercised, say, under the Evidence Act – the decision in IMM says that you have to take this evidence at its highest; secondly, without regard to any issue of reliability or credibility; and the third thing is – and there is a case reference, if I may, that I will give your Honours later on this – is that when there is an evaluation of probative value looked at from the point of view of an accused adducing the evidence in a criminal case, one has to take account of the existence of the criminal standard of proof and the relevant onus – put bluntly and perhaps inaccurately, all the accused is trying to do is establish some sort of doubt – hopefully a reasonable doubt.

So, in evaluating the probative value of the evidence from the accused’s point of view, one needs to factor that into the equation in terms of the assessment of probative value. Now, the bottom line there is that all of these factors are pumping up the probative value, I would submit, in all or almost all the cases involving this situation.

GAGELER ACJ:   Mr Reynolds, we would normally take a break at this time. Are you completing your argument, or would you ‑ ‑ ‑
MR REYNOLDS:   If it is convenient, your Honour, I will be, I think another minute on this point, rather than to hack back into it, I am sorry, your Honour, if that is convenient.
GAGELER ACJ:   Go ahead.
MR REYNOLDS:   Just to complete this point, that is probative value. When one looks at prejudicial effect or, rather, the likelihood of prejudicial effect, we submit that the existence of these various protections and the ultimate possibility of there being a separate trial if it be the case that there is still some residual prejudice must mean that, looked at from the point of view of the judge who is exercising this discretion, that there is almost no risk of prejudice to the co‑defendant in Mr Rogerson’s position at all. So, put bluntly ‑ ‑ ‑
GORDON J:   Well, there is prejudice, but you say it is at the other end of the spectrum compared to the probative value for your client?
MR REYNOLDS:   I do not even accept any prejudice, your Honour. We are looking here at likelihood or danger of prejudice. I say, if you are the judge looking at all the things you can do to eliminate prejudice and that you will do that, I say that as a matter of common sense when this balancing process occurs there is almost no room for it to operate, given the existence of these other protections, and that is another reason why one would not ascribe an intention to bring in section 135 in a manner that would operate to deal with that very situation. It would add little or nothing to the regime that already exists. If the Court pleases.
GAGELER ACJ:   We will take the morning adjournment at this stage.
AT 11.18 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.32 AM:
MR REYNOLDS:   Thank you, your Honours. I am up to paragraph 8 of my outline, and we submit there – I suggest this is trite and not in dispute – is that if there is a joint trial at common law of two or more accused, then there is a trial of two or more separate cases or, perhaps, more appropriately expressed – although it does not, we submit, make any difference – that there are two trials.
GAGELER ACJ:   There might be two matters in one proceeding.
MR REYNOLDS:   I am seeking to establish what the position is under the general law as the first step in putting an argument, which is to be found, ultimately, at paragraph 10. In order to make that good, I have to establish that whatever the nomenclature one uses, in substance, there are two separate cases, two separate trials, even though you have one indictment – I submit, because of the one indictment rule – and you have one judge. But there are, ultimately, two separate cases there.
GAGELER ACJ:   “Case” is a kind of slippery term.
MR REYNOLDS:   So is “proceeding”, your Honour. That is why I am trying to use – so far as it is not misleading to do so, trying to use the word “trial”. In that regard, can I refer your Honours – this is in the folder of cases – to Justice Deane’s discussion of this issue in Bannon v The Queen (1995) 185 CLR 1; the pick‑up passage is at 13. What is of present significance in that paragraph – this is the paragraph beginning at point 2, the joint criminal trial – is that his Honour talks about the “heart of the difficulties” and then refers to this problem about:
Evidence which is led against one –

which is:
prejudicial to the other –

but, he notes, is:
inadmissible in his or her trial.

Further, in the next three lines:
the trial judge must –

give:
clear directions to the effect that the particular evidence is not evidence in the trial of the other accused –

This Court – I will just give your Honours the reference – in the decision in Huynh v The Queen (2013) 87 ALJR 434. In paragraph 49 – I will not take your Honours to it – it talks about their being different cases against each of the accused, and there are other cases that say these same things. So, I think I used the expression suis generis before; what you have, probably stemming from the one‑indictment rule, is a requirement that if you have a trial before the same jury, you have to have only one indictment.
You then introduce, in effect, two different cases. It is a little bit of a mishmash of procedures historically. That does not alter the fact that there are two different trials and there are two different cases, although, to state the obvious, there will very often be an overlap in the evidence – perhaps a very large overlap – but that does not alter the fundamental nature of what is occurring in that situation.

So, even though there is one indictment, and obviously there is one tribunal of fact, one tribunal of law, basically everything else is separate so that the accused each pleads separately and orally to the indictment and, at the risk of underlying the obvious, may put in issue very different things. One may plead insanity. Even if the pleadings are the same, for example, just a not guilty, the approach to the case may be very different. One may say, I was not there, the other may say, I was there but I did not intend to do whatever.

It means – and I will take your Honours briefly to a case which says this. There will be, as a result of different facts at issue between the Crown and each accused. There will often – not always, but often – be separate legal issues. And as the decision in Huynh – and also we refer to Towle, at paragraph 8. Absent a situation where the cases are basically identical, there will almost always have to be a separate summing up which deals with these various issues.

Your Honours, one reference in that regard which I have found useful is – I perhaps will not take your Honours to it right now – but your Honours, particularly those from New South Wales, would remember years ago there was a fight between a whole lot of bikies at Milperra, sometimes called the Milperra massacre, and I think half a dozen people were killed. I think there were about 20‑odd defendants, and Justice Roden had to conduct a trial in that situation, and he obviously had to deal with some very difficult issues about how to keep the cases separate. There is a very good discussion – this is also in the folder – this was reported as a note. It is called R v Annakin (1989) 17 NSWLR 202. The particular passage, which I do not think I need read out, is about 208 at about C through to the bottom of 209 and ‑ ‑ ‑

GLEESON J:   Let me just check the page.
MR REYNOLDS:   Pages 208 to 209.
GORDON J:   I think we have the Australian Criminal Reports volume.
MR REYNOLDS:   I am sorry, your Honours, notwithstanding that it is reported in the New South Wales Law Reports, someone has made a decision to give your Honours the Australian Criminal Reports, and I apologise for that.
GORDON J:   Maybe you will tell us where it is in the middle of it.
MR REYNOLDS:   All right. It is a bit difficult. There are no paragraph numbers either on this. Do your Honours see a heading “Comancheros” and then another one “Bandidos”?
GAGELER ACJ:   How far through the judgment is it?
GLEESON:   Yes, I have them. That is at 136?
MR REYNOLDS:   It is very difficult to find a marker here.
JAGOT J:   The heading is “Comancheros v Bandidos”, is it?
MR REYNOLDS:   “Comancheros” and then “Bandidos”, and if your Honours move about two or three pages after that ‑ ‑ ‑
JAGOT J:   Two or three pages. So those headings are at page 136, “Comancheros” and then “Bandidos”, and then we go two or three along?
MR REYNOLDS:   Yes.
GORDON J:   What does the paragraph start with?
MR REYNOLDS:   The paragraph begins “It would be idle to say”, and this is in the authorised version of ‑ ‑ ‑
STEWARD J:   Page 140, I think, down the bottom.
GORDON J:   Down the bottom of – we have it.
JAGOT J:   Yes.
MR REYNOLDS:   So, what your Honours get there – and again, I found it helpful – your Honours already know this area well, but it was useful to me in understanding how a trial judge goes about this. Your Honours will see a list – it goes down to letter (m) – of all the different things that Justice Roden did in order to keep consideration of these issues separate. Of course, a lot of this is directed to the separate differences in that there are separate trials, we would say, and obviously separate evidence and separate issues. For example, I can go on any of the facts, but one may have said self‑defence, another may have said, I was not there, et cetera – all sorts – and the very elaborate procedures that he adopted.
The other thing is that these aspects of the case show the separate nature of the two – or three, or twenty, or however many there were – trials, but the parties are also separate and that is the point made in R v Darrington.

GLEESON J: I suppose, if there are separate proceedings, then the co‑accused cannot object to evidence that is sought to be tended by the other co‑accused.
MR REYNOLDS: Exactly. Your Honour, with respect, has put your Honour’s finger on a most important aspect of this which is that Mr Rogerson had no ability at all to object to Mr McNamara adducing evidence in the case of R v McNamara. He did have a right to object to that evidence as between the prosecution and Mr Rogerson. But what happened here is not that the evidence was rejected just against Mr Rogerson, it was excluded from the whole case. That, we say, is impermissible both at common law and for that matter under the regime operating under this Act.
On the issue of “party”, I refer your Honours to R v Darrington which your Honours have – it is a different page from the one your Honour Justice Steward raised with me earlier. It is at page 383, and at about line 10, there is a statement that – I think he is talking about Kaye Darrington here:

She was not a party between whom and McGauley an issue was being tried. Statements by her could not have been received in evidence as the admissions of a party in the trial of issues between McGauley and the Crown. If the statements cannot be received as the admissions of a party, evidence of them –

et cetera. So, that is an animadversion by Justice Jenkinson to this issue of different trials – or at least one aspect of it. But the point that I am making – as your Honours no doubt appreciate – is this is a more fundamental point. It is not just about who is a party, it is about that there are different trials or different cases, and, we submit, this is a fundamental aspect of a joint trial at common law. So, some of these aspects I have stressed are at paragraph 9 of our submissions, finishing off with the proposition that:
the jury must consider the case against each of the defendants separately.

What, we submit, flows from the separateness of these two trials, these two cases, is the proposition we put at paragraph 10, which is that the admissibility of evidence in each separate case must be determined separately, and we refer to various references both at common law, but also we have pulled out a whole lot of cases – I think they are mostly applications for separate trials; my learned friend has been given notice of these – simply to paragraphs which make the point that admissibility post the Evidence Act has been determined separately as between, on the one hand, the Crown and one co‑accused and, on the other, between the Crown and another co‑accused.
So that, we respectfully submit, is a basic and fairly trite proposition, and the judges have decided in those cases, and no doubt many others, that this issue of admissibility, both at common law and under the Evidence Act, is necessarily dealt with separately in relation to each case or each trial. Can I give a couple of examples. I think, given what your Honour Justice Gleeson said earlier, I may have dealt with this, but just to be clear, if the prosecution is adducing evidence, then the issues of admissibility are dealt with, first of all, as between the prosecutor and D1. D1 can say, this evidence is not relevant to the case against D1, or there is an exclusionary rule that applies to the evidence as between P and D1, or that I, D1, ask the court to exclude the evidence on this discretion we are talking about. But when that is done, it evaluates the probative value of the evidence in the Crown case as against the prejudicial effect on D1, and the same applies to D2 in our example.

Again, the result of this, for both defendants, is that evidence is either ruled in or out vis‑à‑vis each defendant separately. We will put, as your Honour Justice Gleeson did earlier, that D2 cannot be heard to object to evidence led only by – it does not matter whether it is the prosecutor against D1, or D1, obviously, against the prosecutor.

The other aspect of this, the second example I give, is the example that we are dealing with here, which is the case of D1 adducing evidence and where D2 raises an objection. I think I dealt with this at the beginning, but we suggest that it is well‑established if the trial is played according to Hoyle – that is, if they restrict observance of proper procedure – then the appropriate thing –one sees judges do this, particularly experienced trial judges – is if there is an objection by D2, then the judge clarifies what the Crown’s position is.

If, as here, the Crown did not want to – did not seek to have that evidence submitted against D2, then, as they say, cadit quaestio, there is no need to look at the matter further. The result is that the evidence is not admitted as against D2, although it may well be admitted in D1’s case.

GAGELER ACJ: I thought you said at an earlier stage of your submissions that D2 has no right to object to evidence adduced by D1.
MR REYNOLDS: Not as that – if I put it that way, your Honour, that is inaccurate. His right is to object to evidence adduced by D1, which the Crown wishes to tack on to the Crown case. He has that right. If the Crown does not, he has no right. In other words, it is not as simple as your Honour put to me, ascribing to me a submission which I perhaps made, but that is the distinction.
GAGELER ACJ: So D1 leads the evidence. D2 says nothing about it.
What is the status of that evidence in the case against D2?
MR REYNOLDS: The answer is that evidence is now in against D2, and one analysed it, that by raising no objection, then that means that the evidence is in against D2 for whatever value it has against D2.
GAGELER ACJ: I am not sure that there is not a logical difficulty with the way in which you have put your argument. I will need to consider it.
MR REYNOLDS:   Your Honour, it is – your Honours would have seen this happen in other contexts. Particularly in the common law area is that you have a development of principles and an application of matters of practice and trial procedure or whatever, but they are very well understood by those who are now fairly senior practitioners, if not retired, but where the current crop are not as attuned to these niceties, just as they are not as attuned to niceties in other areas, for example, about pleading and points of other procedure, particularly at a trial. So, if your Honour ‑ ‑ ‑
GAGELER ACJ:   What you are saying is that there are many aspects, and important aspects, of criminal procedure that have not necessarily been articulated in appellant judgments.
MR REYNOLDS:   That is so, yes. But I am not – it is not a submission. Your Honour may rest assured that I am putting otherwise than having carefully considered it and investigated it. So, I think I have covered all but the situation where D1 adduces evidence, and the Crown says that that evidence is to be led by the Crown as against D2. Then, again, if D2 took objection, D2 could object on all the usual grounds as between him and P, but any discretionary exclusion would be only from his case between D2 and P, and the discretion would be exercised as between P and D2. But one thing that would not happen is that the evidence is excluded from the whole case.
There is not any reason why the provisions of the Evidence Act in general, and 135 in particular, do not comport to the established regime for adducing evidence, we submit, in a joint trial – or, going back to section 9 of the Evidence Act, this is a rule or principle of the common law relating to adducing evidence and the admissibility of evidence in joint trials, and no argument can be put that the Act expressly ousts it, or that it even does so by necessary intendment. I was going to cover – and I think I already have – the way that this should have been handled either at common law or under the Evidence Act at this trial, but, as I say, I believe I have dealt with that. If your Honours do not think I have, I am happy to go over it again.

The next issue I deal with in paragraph 12 and, I submit that if this discretion operates in the way adopted by the four judges below – which I will not repeat in detail again – some consideration of it, whether we are talking about the common law or about the operation of this Act, shows the sort of difficulties and anomalies that are necessarily involved in the way it has been formulated. Your Honours appreciate that I submit, vis‑à‑vis the Evidence Act in section 135, that one would not likely ascribe to the legislature and intention to create a regime by legislation which had such absurdities and anomalies in it. In order to make good that argument, I have to ask your Honours to think of a case a bit – easiest to leave a case like the present one to one side – and I will come back to that – but envisage a case like the Milperra Case involving – I think there was something like 20 defendants.

If your Honours just focus for a moment on a single piece of evidence which is adduced, as here, by one of the defendants. The thing about any one item of evidence is that, if one concedes that there are, at some level, 20 cases, then one can see that, as to probative value, that item of evidence might have probative value in some or, perhaps, all of those cases; that its probative value might vary between the prosecutor and each defendant; also, that item of evidence might be probative to some extent even within the one case for the prosecutor, but also for a defendant. So, you have multiple potential uses of the evidence which relate to an ascribed – or potentially ascribed – probative value and one has prejudicial effect which may vary across those 20 defendants – some may have none; some may have an enormous amount.

GAGELER ACJ: It is point against you, Mr Reynolds, that this is the precise scenario that section 136 is directed to.
MR REYNOLDS: Well, your Honour, I am dealing with a case involving the operation of section 135, and it is said to operate in a particular way. I am seeking to demonstrate that if one looks at practical situations – whether we are considering the application of the common law or section 135, it does not really matter – the end result of the principles being formulated, as the courts did below, is inevitably to cause an impossibility of application of those principles.
Now, it may be that there may be some possible amelioration of those difficulties by utilising the power in section 136, but what I am trying to do is to show that this just does not work. So, I am picking an example, whether it be looking at the matter from a common law point of view or the Act, and I am saying, as far as concerns section 135, this just will not work. In that instance, what does the Crown say about how the discretion would be applied, how it would be determined, by a judge in that situation. Once one introduces the notion of playing off on the exercise of this discretion one defendant against another, then one introduces inevitably the difficulty of trying to deal with the fact that there are facts or evidence which can create multiple forms of probative value for various parties.

I submit that the Crown cannot say, using that example, how this works, whereas on the thesis which I am putting to your Honours, I submit there is a very easy solution both at common law and under this particular Act. What is that solution? The answer is, it is simple. It is that you take the – as happened in the traditional common law context that I mentioned at the very outset, you look at the item of evidence as between the prosecutor – assuming the prosecutor wants to use it; that is, have it admitted against the defendant – and you look at the prejudicial effect, and you weigh those two up as between the prosecutor and each defendant, and you do that seriatim.

That is the equation which must be performed. But once one – as I said earlier, using my two fingers – moves away from a binary equation which considers both aspects of this rationality inquiry – that is, probative value on the one hand and irrational prejudice on the other – then it has to work, and will only work, in that binary context as between the prosecutor and each defendant.

Let me tell you also – and I will include my use of examples with this one. Take something a bit simpler and much closer to the present case. I will use numbers out of a hundred to indicate the level of probative value and the level of prejudicial effect, which, I accept, is – that is just to try and be clear about it. I do not say that is how it is done. If, in this case, as here, you have D1 seeking to adduce evidence and, as between D1 and D2 – which is what happened here – the probative value might have a value of say 30 out of 100, and the prejudicial effect to D2 would be 40 – in that instance, as happened at trial, the evidence would be out.

But that same evidence might also have probative value in the case of the prosecutor as against D2. The probative value in that instance may mean that the probative value as between P and D2 of that evidence is, say, 50, and again the prejudicial effect remains at 40. Now, in that equation, the evidence would be in. Now, my question to my learned friend is, if there are the two possibilities and they were actually live in this case, then how does the construction given below to section 135 – or, if it matters, to the common law – how does that work in that situation? Your Honours, I submit it does not and that it cannot, and, subject to one matter, those are my submissions.

There is a proviso issue that has been floated by the Crown. I was not intending to deal with it in‑chief. If your Honours would like something said about that right now, Mr Wendler is in a position to deal with that issue, but we are in your Honours’ hands.

GAGELER ACJ:   We will hear from Ms Dowling in‑chief, Mr Reynolds, and you can deal with the proviso in reply – or Mr Wendler can deal with the proviso in reply.
MR REYNOLDS:   Thank you, your Honours. Those are my submissions.
JAGOT J:   Could I ask just one question before you sit down, sorry? Paragraph 11 – which is where it seems to be the culmination of all your arguments in your outline – am I right to assume that this is to be read as confined to the argument on construction as per the special leave point, that this all turns on party? Or is it ‑ ‑ ‑
MR REYNOLDS:   No. The way I have put it is that the reading of the word “party” is a consequence of the argument rather than the focal point of it, if I can put it that way.
STEWARD J:   You might alternatively say that, having regard to your submissions, “party” could only ever mean one of D1 or, alternatively, in a different trial, D2.
MR REYNOLDS:   Yes. That is a consequence of the argument ‑ ‑ ‑
STEWARD J:   Yes.
MR REYNOLDS:   ‑ ‑ ‑ but I do not just go to that one point and then drill into it and say, that is my submission. If the Court pleases.
GAGELER ACJ:   Thank you. Ms Dowling.
MS DOWLING:   Thank you, your Honours. I propose first to address on the construction of the section with reference to the textual context of section 135 within the Act, and then with reference to the historical and procedural context in which the Act was enacted and in which it operates.
Secondly, to respond to the argument that the common law assists in the construction of the section. Our short point there is that it does not because the text, context and purpose of the provision clearly is to confer the discretion as argued for by the respondent. Secondly, that my learned friend’s submissions are not an accurate statement of the common law as at 1995.

Then, thirdly, we propose to address, on the application of the proviso. I propose that my learned junior, Mr Balodis, addresses on the proviso but if I could indicate at this point that our position is that if error is found, we submit that the nature and effect of error is not such as to preclude the operation of the proviso, but we do accept that the proviso – the application of the proviso to the appellant’s case – was not considered by the intermediate appellate court. If this Court agrees that the proviso could be applied, the respondent would not seek to be heard on the question of whether your Honours should remit it to the Court of Criminal Appeal for determination of whether an actual, a substantial, miscarriage of justice actually occurred.

GAGELER ACJ:   Ms Dowling, was the proviso raised in the Court of Criminal Appeal?
MS DOWLING:   It was. Error not being found, it was not considered.
GAGELER ACJ:   Just as a matter of procedure, it might be useful, in future cases, for a respondent seeking to raise a proviso in this Court to do so in a more formal way by notice of contention.
MS DOWLING:   Thank you, your Honour. Before I leave the issue of the proviso, it is our submission that if the Court does wish to consider for itself the application of the proviso, based on the evidence that is before this Court and the findings of the CCA, then we are in a position to assist the Court in that task.

GORDON J: Do we have everything? I notice ‑ ‑ ‑
MS DOWLING: Not all of the evidence, and that process would require the Court to accept various of the factual findings that have been made by the Court of Criminal Appeal. It is not apparent from the appellant’s response to the proviso argument as to what their position is on that submission. Before turning to the language of the statute, your Honours, it is pertinent to note the important public policy reasons why it is in the interests of justice that people charged with having committed an offence jointly should be tried jointly and that is, of course, the backdrop against which the issues in this trial arose and those in all of the authorities to which your Honours have been taken this morning.
There are numerous observations of this Court to that effect, including the seminal observations in Webb v The Queen (1994) 181 CLR 41 and Ali v The Queen in 2007. In addition to the highly desirable objective of avoiding inconsistent verdicts as between trials on the same evidence and the importance of having a single tribunal of fact assess the merits of any cutthroat defence or defence of coercion, considerations that also support a joint trial for persons charged with committing an offence jointly include the reduction of trauma and inconvenience to witnesses and the increased time and expense involved in separate trials.

Where two accused deploy a cutthroat defence or argue coercion, as happened in this case, the considerations in favour of a joint trial are immeasurably strengthened. But it is important to recall that the interests of justice on this question, the question of whether there should be a joint trial, are not confined to the interests of the accused. On this point, may I take your Honours to the joint book of authorities at 798 to the judgment of his Honour Acting Justice Judge of Appeal Nettle when his Honour was sitting in the New South Wales Court of Criminal Appeal in Henry and Swansson.

At paragraph 12, your Honours, his Honour Justice Nettle comprehensively summarises the principles which govern an application for a separate trial which, in our respectful submission, succinctly bring together these considerations. Similar observations were also made by his Honour Justice Keane in Roughan at paragraph 45. Your Honours will see at paragraph 12(1) the reference to Webb v The Queen. Importantly at subparagraph (3), joint appeal book 798, his Honour’s observations that:

while most joint trials may be productive of some degree of prejudice, prejudice of that sort will not be taken to amount to positive injustice unless it is of a kind which is not really amenable to nullification by judicial directions to the jury.

So, it is assumed that in a joint trial there is likely to be prejudice to one or more of the accused by operation of that process. So, as your Honours are well aware, a fair trial is not synonymous with a perfect trial.
GLEESON J: Can I just confirm that a joint trial of this kind is two separate proceedings, for the purposes of section 56 of the Evidence Act?
MS DOWLING:   No, we do not agree with that proposition at all. It is one proceeding in which there are two cases which are heard, and a case involves the joinder of issue between the Crown and the accused in a particular case. I will take your Honours through the provisions of the Act that make it clear that here is a distinction between those concepts.
GORDON J: Do you propose to take us to the balance of the propositions identified by Acting Justice of Appeal Nettle in that paragraph 12, because if you go on, his Honour then identifies, in the fourth bullet point, in effect, the two carve‑outs from what you have just put to us as a matter of proposition.
MS DOWLING:   Yes, and I was about to go to subparagraph (4).
GORDON J: Thank you.
MS DOWLING:   There is that carve‑out where the evidence is substantially different as between the accused. And another is where there is a likelihood that some evidence is prejudicial. Now, your Honours will see from our written submissions that, in our submission, his Honour’s suggestion in this decision that there was no discretion to exclude under 135, we say is not supported by the authorities upon which his Honour relied, and that was the conclusion of the Court of Criminal Appeal in this case in relation to that aspect of his Honour’s judgment in Henry. So, whilst we agree with the first part of the proposition in subparagraph (4), in our respectful submission, that is not an accurate statement as to inadmissibility.
GORDON J: It is not about inadmissibility, though, is it? It is dealing with questions about separate trials. It is recognising that the evidence is admissible and asking what you do about it in those two carve‑out type situations.
MS DOWLING:   Our overarching proposition is that the Evidence Act gives to a trial judge various mechanisms by which to achieve equity between all the parties. It comes – there are particular cases where that cannot be achieved, and a separate trial is required.
GORDON J: Is that not all that he is saying in paragraph 4?
MS DOWLING:   In my submission, yes, the first part of the paragraph, I was a little concerned, but the second part of the paragraph picks up or pre‑shadows, prefigures, his Honour’s comments later in the judgment, which I might come to when I get to that part of my submission, if I may. There will always be an end point where a separate trial is required, where it is not possible to, whether by judicial direction or the exclusion of evidence or the limitation of evidence to achieve that balance between the parties. And that is the safety net, as it were, in which the Evidence Act operates.
GORDON J:   Can I ask a very basic question. If you start with section 55 and the evidence being admissible and relevant, and 56, therefore, subject to objection, it being the evidence in the proceeding, here you have, on your analysis, as I understand it, an objection taken by counsel for Mr Rogerson to the evidence being led, subject to the challenge here. One then asks oneself against the background of the propositions to which you have just identified plus at least some of those identified by your learned friend being the defence counsel are – there would ordinarily be very few cases where they would not be entitled to adduce evidence in their defence. Is it at that point that, on the objection, that you say this balancing exercise comes in under 135 together with 136?
MS DOWLING:   Yes, that is where it came in in this case. It was sought to be adduced, and the operation of 55 and 56, which are the gateway provisions, in the absence of any objection, that evidence goes in, and it is admissible for all purposes in both cases and that is a critical feature of both the common law and also the operation of the Evidence Act.
It is a step in the procedure that is rarely adverted to in practice. The relevance of particular evidence is generally apparent to the parties, and the understanding of the operation of section 56 is also well understood, and an objection will be taken by a party who seeks to have it excluded, whether by operation of one of the exclusionary rules such as hearsay or opinion or because it is prejudicial, unfairly prejudicial to that defendant’s case.

If I can start at the beginning, if I may, of the Evidence Act with section 4, which is reproduced in the joint appeal book at page 21. Your Honours will see that the Act is stated to apply:

to all proceedings in a NSW court –

and then it specifies various proceedings in subsections there, civil and criminal. So, the construction of section 135, and in particular the use of the term “party” in that section, is one that does apply in civil proceedings in addition to criminal proceedings. As your Honours are well aware, section 135(a) provides that a court:
may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)be unfairly prejudicial to a party –

The Evidence Act does not define the word “party”, although it is clear that that term must apply in both civil and criminal proceedings when used in the context of sections 135 and 136.
The practical context in which the Act operates and in which section 135 must be construed includes the principle to which I have just adverted to, but on a trial by indictment the jury can only be empanelled and sworn to try the issues on a single indictment and, of course, there are those strong reasons of policy and principle why persons charged with having committed an offence jointly should be tried jointly.

If I could take your Honours now to the dictionary of the Act, which is in the joint book of authorities at 119. There are various definitions in the dictionary that assist in the construction of the word “party” in 135(a), and some of these arguments require some jumping backwards and forwards between the provisions of the Act.

GAGELER ACJ: Do you say the word “party” has a consistent meaning throughout the Act?
MS DOWLING: Yes, we do, in that it means a party – to use the CCA definition at paragraph 522, which is at core appeal book 535, we say is an appropriate expression of that, which is that:
“Party” is an expression which is apt to describe those persons who are participating in a legal proceeding and whose rights and liabilities may be affected by the evidence adduced in that proceeding.

The various uses of “party” throughout the Act are consistent with that meaning, your Honours.
GAGELER ACJ: So, it is critical to your argument that there is, on the one indictment, one proceeding.
MS DOWLING: Yes. If I may take you first to the definition of “admission”.
GORDON J: Sorry, I could not quite hear what you said.
MS DOWLING: I am sorry, your Honour – the definition of “admission” in the dictionary, which is at joint book of authorities, page 119. The first part of the definition at subparagraph (a) provides that:
admission means a previous representation that is:
(a)made by a person who is or becomes a party to a proceeding –

and there is use of the singular there, to which I will return.
GORDON J: And:
(including a defendant in a criminal proceeding) –

MS DOWLING: That is right. Thank you. In our submission, the term “party”, in the context of an admission, must refer to all and any accused in a proceeding on indictment with two or more accused. Before I come to the definition of “cross-examiner” in the dictionary, it is useful to look at section 27 of the Act, your Honours, which is at joint book of authorities page 29. Section 27 is the provision in the Evidence Act that entitles an accused person to cross-examine another accused in an indictable criminal proceeding. And, of course, this is the section that conferred upon each of Mr Rogerson and McNamara the right to cross-examine the other at trial once they went into evidence.
Your Honours, just while I am at this point in my submissions, I would just respectfully remind your Honours of the very different significance of out-of-court representations made by accused persons, which can only be tendered against D1’s out-of-court admission, or representations, can only be tendered against D1, as opposed to in-court evidence given by D1, which, under section 56, goes in for all purposes and against D2. So, section 27 simply states that:

A party may question any witness, except as provided by this Act.

And, in our submission, clearly, that includes any co-accused in a joint trial.
JAGOT J: Well, it is Part 2, clause 7 defines “witness” to include a defendant who is a “party”.
MS DOWLING: That is correct.
JAGOT J: Yes.
MS DOWLING: Thank you, your Honour. Going back to the dictionary, if I may, “cross-examiner” is defined, and that is joint book of authorities, page 122:
cross-examiner means a party who is cross-examining a witness.

Again, we say, that, clearly, must refer to any co-accused. And, moving to clause 2, at joint book of authorities 126 ‑ ‑ ‑
GAGELER ACJ: I am sorry, clause 2 of what?
MS DOWLING: Of the dictionary – so Part 2, clause 2, JBA 126 – references to inter alia cross‑examination at subclause (2). Subclause (2) provides that:
A reference in this Act to cross-examination of a witness –

which includes an accused:
is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence.

Again, we have use of the word “party” that, in our submission, clearly applies to a co‑accused. Turning to the point that your Honour Justice Jagot just made, with respect, at joint book of authorities 127, the provision at clause 7 relating to “Witnesses”, subclause (1) states that:
A reference in this Act to a witness includes a reference to a party giving evidence.

And similar provisions at subclause (2) and, for abundant clarity, subclause (3):
A reference in this clause to a party includes a defendant in a criminal proceeding.

So, there is a clear intention there by the legislature when using the word “party” in various provisions of the Act to use that phrase to refer to an accused. It is clear from the definitions in the dictionary that when an accused cross‑examines a co‑accused who is giving evidence pursuant to section 27, that is cross‑examination by a party of another party giving evidence, and the Act contemplates that each accused is a party who can, if he or she gives evidence, in term be cross‑examined by any party who is a defendant – that is, any co‑accused. There is no rational basis to conclude that a party in section 135(a) has a different meaning to “party” when it is used in section 27.
If I could take your Honours to section 136, which is, of course, contiguous to section 135, section 136 is immediately contextual to section 135, and the two provisions are closely related. Like section 135, section 136 applies to both civil and criminal proceedings. Where section 135(a) provides for the exclusion of evidence, after that balancing exercise has been undergone – section 136 deals with the circumstances where there is a danger that the particular use of the evidence might be “unfairly prejudicial”, but it does not require assessment of the probative value, or the probative value to be weighed.

The response of the Act to that situation is to permit the use of the evidence to be limited. Both sections 135 and 136 employ part of the same test before the Court will intervene. The evidence must – or the evidence, or the use of the evidence – must be found to “be unfairly prejudicial to a party”. The Court of Criminal Appeal held, at paragraph 512 of the judgment, that the word “party” must have the same meaning in section 136 as it does in section 135; that it could not be the case that a Court hearing a criminal allegation could only exclude evidence as between the prosecution and D1, but could limit its use as between the prosecution and all accused. In our submission, that consequence would lead to significant confusion in the application of the Act in practice and should be avoided.

The appellant submits in his submissions and in oral argument this morning that section 136 could have been used to direct the jury in relation to prejudice to Mr Rogerson arising from the evidence sought to be led in Mr McNamara’s case. That submission, in my respectful submission, demonstrates the impracticality and artificiality of the appellant’s argument. It seems to suggest that evidence adduced by Mr McNamara led in the case against Rogerson, that is, for all purposes, under section 56, could be limited under section 136 in the supposedly separate proceedings that are Mr Rogerson’s trial, in which he is a party, but could not be excluded under section 135 at his application, because he is not a party to that trial.

GAGELER ACJ: You are pointing out an inconsistency in the argument being put against you. You are not saying that section 136 would not be available.
MS DOWLING: No, I am not. Thank you. The operation of sections 31, 83, and 87, are of some assistance in our submission. Those sections of the Act address the use of admissions by the prosecution and also by co‑accused in a joint trial – and they were considered by the Court of Criminal Appeal in their construction argument. At the appeal book, joint book of authorities page 53 sets out section 81, which disapplies the hearsay and opinion rules to:
evidence of an admission –

by a party. Although the words “party” are not used in the section, one goes back to the definition of “admission” in the dictionary, to which I just took the Court.
Section 83 then provides an exception to the operation of section 81 so that the hearsay rule and opinion rule do apply to evidence of an admission in respect of the case of a third party. Again, section 83 applies in both civil and criminal proceedings. “Third party” is defined in subsection (4) to section 83 as:

a party to the proceeding concerned, other than the party who:
(a)made the admission –

It is tolerably clear that that use of “party” in subsection (4) must refer to a co‑accused in a joint trial in criminal proceedings. That was the finding of the Court of Criminal Appeal at paragraph 517 of their judgment.
So, an example of the operation of sections 81 and 83 would be if D1 made an out‑of‑court representation to a police officer that his involvement in an offence was confined to driving D2 to the crime scene and if D2 wished to cross‑examine D1 with a view to inculpating D1 and exculpating D2, under section 83(2), D2 could consent to D1’s admission being used in D2’s case. Here we have use of the word “case” as opposed to “proceeding” which we say is of significance when considering the nature of a joint trial.

JAGOT J: That is defined in the dictionary.
MS DOWLING: Case of the party is, and the case of a third party is not. That is at dictionary – joint book of authorities 120, your Honours will see the:
case of the party means the facts in issue –

and we say that that is useful – that concept of the “facts in issue” ‑ ‑ ‑
GLEESON J: Does not seem very apposite to a criminal proceeding.
MS DOWLING: No, the phrase, “case of the party”, that is not used in section 83, it is:
case of a third party –

that is used in 83(2), not “case of a party”. I will have to double‑check this, but my recollection is that case of a party comes up in relation to the burden and standard of proof in section 141. But it – as your Honour Justice Gleeson noted, it does not apply frequently in a criminal trial. There are some offences where the burden shifts to the accused, but they are infrequent.
GORDON J: Well, 141 deals with the “case of a defendant”.
MS DOWLING: Yes, and, of course, “party” includes a defendant. And that would refer to those limited examples such as a deemed supply or where the onus has shifted or there is a burden on an accused person. Excuse me, your Honours.
Coming back to section 83, the notion in section 83(1) of the case of a party strongly indicates, in our submission, that for the purposes of the Evidence Act parties charged on a joint indictment are not in separate proceedings to each other. They may have separate cases within one proceeding, but they are all parties to that one proceeding. Of course, their individual cases comprise the facts in issue between that party and the Crown, but each is a party to the same criminal proceeding, which is the “proceeding concerned”, to use the language of section 83(4).

Section 87 of the Evidence Act is also relevant context, in our submission. Section 87 is a provision that, in certain circumstances, facilitates the operation of section 81, and it is codification of what is known at common law as the co‑conspirators rule. So, section 87(1) provides that:

For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find –

one of three things. The third thing in 87(1)(c) is if:
the representation was made by the person in furtherance of a common purpose . . . that the person had with the party or one or more persons including the party.

Your Honours will be familiar with the decision of this Court in Ahern, which was the common law statement of that principle and, of course, the out‑of‑court representation in that case was made by a co‑accused.
In combination with section 83, section 87 enables representation made by D1, or any other person, against the interest of D2 to be admitted as an admission of D2, provided the representation is made in furtherance of a common purpose between D1 and D2. And we say that “party” in section 87 clearly refers to an accused – any accused – in a criminal trial involving multiple accused. Could I take your Honours now to section 20 of the Act. That is at joint book of authorities 26, 27. So, section 20:

applies only in a criminal proceeding for an indictable offence.

So, we automatically have the one‑indictment, one‑jury rule operating here. Under subsection (2) of section 20:
The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence.

That is a very significant provision in practice. It obviously contemplates “a party” in section 20 may refer to one of multiple accused persons in a joint trial. That is clear from the phrase in subsection (2):
another defendant in the proceeding –

Still on (2), we say there is significance in the use of the singular word “proceeding” there, and that picks up on the submission that I made a few moments ago that, whilst there may be multiple cases occurring, there is only a single proceeding. If I can, just before the luncheon argument, take your Honours to sections 55 and 56 in the joint book authorities at page 41. Your Honours, sections 55 and 56 operate as the gateway to Chapter 3. Significantly, they, section 55(1), refers to:
evidence that is relevant in a proceeding –

Again, we have the singular there, and that phrase is used twice in (1). That is the fundamental criterion by which all evidence is first measured, and if it falls at 55(1), then it, obviously, will not be admissible. Section 56 provides that:
evidence that is relevant in a proceeding is admissible in the proceeding.

That is the provision that provides that all evidence goes in against all parties for all purposes, unless it is limited.
GORDON J: Well, 55 identifies what is relevant and 56 determines admissibility.
MS DOWLING: Yes. It is a sequential, or they operate together; 55 first, and then 56 is ‑ ‑ ‑
GORDON J: And then the critical aspect of 56 is:
Except as otherwise provided by this Act –

MS DOWLING:   That is right. It is uncontroversial that there are many, many, many places in the Act that exclude that, but the starting point is not that it has to be made admissible by some direction of the trial judge, but that it is admitted in the proceeding pursuant to the operation of section 56, unless there is some further step taken to limit it or exclude it.
GAGELER ACJ: Ms Dowling, I see the time. Mr Reynolds, after the luncheon adjournment, it would be helpful if you could indicate your position on remitter of the proviso issue, if it is reached.
MR REYNOLDS:   Thank you, your Honour. I think I can indicate now that we would oppose that course.
GAGELER ACJ: You oppose it?
MR REYNOLDS: We would oppose that course.
GAGELER ACJ: Very well. Thank you. The Court will now adjourn until 2.15 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.14 PM:
MS DOWLING:   Your Honours, before the lunch adjournment I was addressing on sections 55 and 56, and putting the proposition that it is uncontroversial that in a trial of multiple accused on a joint indictment, evidence is admitted against all accused unless it is confined to the prosecution case against one accused by operation of a provision of the Act or an order of the trial judge.
In relation to the submission that I have been developing about the significance of the singular “proceeding” in the Act, I do wish to advert to the Interpretation Act provision that singular does include the plural. But, we say, the use of singular in the Act is an example referred to in section 5(2) of the Interpretation Act and it is an example of a contrary intention appearing within the particular provisions of the Evidence Act.

Still on that point, your Honour, the learned presiding Judge, put to me that we hang our hat on it being a single proceeding, to which I answered, yes. I would like to step back or qualify that a little bit, if I may. Whatever the nature of the matter before the Court on a joint indictment – whether it is called a “proceeding” or “proceedings”, or a “trial” or “trials”, within one matter – however described, we say that the trial judge – the single trial judge, who is adjudicating the issues on a single indictment, has a discretion to adjudicate the rights as between co‑accused.

It is not critical that it is called a “proceeding”, although I do not step back entirely from my earlier submission; that is the language of section 4 and that is the language used in the Evidence Act, and we say that the description of what is before the court on a joint indictment as a proceeding is apposite, and that fits in well with the description of the “party” as described by the CCA at paragraph 522 of the judgment that I started off with. So, I just wanted to clear that point up before I went any further.

Still on this point, the appellant’s outline refers to a number of cases, at paragraph 10, of different examples of different situations in which the broad discretion has been exercised in different ways. We say that those cases do not cut across the proposition that section 56 means that all evidence that is admitted, is admitted in the proceedings against all accused unless it is limited or excluded as against a particular accused.

If I could turn back now to another provision of the Evidence Act which we say is relevant to your Honours’ consideration of this special leave question, and that is section 97 which is in the joint book of authorities at page 59. That is the tendency rule, your Honours. Section 97(1) governs the admissibility of tendency evidence and provides that:

Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency . . . unless:
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)the court thinks that the evidence will . . . have significant probative value.

Like section 135, section 97 is found in Chapter 3 of the Act, and, in our submission, there is no apparent warrant to interpret the term “party” in section 97 any differently to the way it would be interpreted in section 135(a).
If the appellant’s contention is correct, there would be no obligation on the part of an accused who is seeking to adduce tendency evidence to give any notice to his or her co‑accused, even though the evidence may be most prejudicial to that co-accused, and the notice requirement in subsection (a) would, in our submission, be substantially frustrated. A good consideration of how this would work in practice is to take the factual scenario in Lowery v The King, and that is a scenario to which, in New South Wales, the Evidence Act would apply, and section 97 would apply to that part of the evidence that was properly described as:

Evidence of the character, reputation or conduct of a person, or a tendency –

So, taking the approach advocated by the appellant, section 97 would not have required King to give Lowrey notice of the significantly prejudicial evidence of Professor Cox, the expert psychiatrist. It can immediately be seen that the consequences for the administration of justice are highly problematic and would lead to marked unfairness in application if a construction of section 97 is adopted that does not accommodate “party”, including a co‑accused.
The same submission can be made in relation to section 98, in relation to the adducing of coincidence evidence and, indeed, of every provision which requires notice to be given by a party who proposes to adduce evidence, pursuant to the various exceptions to exclusions of evidence. On the appellant’s argument, notice under section 67 of an intention to adduce hearsay evidence would not be required to be given by an accused or a co‑accused, or to adduce evidence of reputation under section 73, or adduce an expert’s certificate under section 177.

Consideration of these other provisions of the Act supports an interpretation of the word “party” in 135(a), which is available, sensible and avoids such consequences if one were to expand that definition to other provisions of the Act. The appellant does not point to any provision of the Evidence Act that evinces an intention of the word “party” in 135 should exclude a co‑accused in a proceeding on indictment and, again, I rely on the – we say – very appropriate and apt description or definition of “party” by the CCA at 522 of that judgment.

GAGELER ACJ: Well, to be fair, he relies on section 9 combined with a view of the common law, either now or sometime in the mid‑1990s.
MS DOWLING: In my respectful submission, that broad reliance on section 9 does not deal with the architecture and structure of the Act and the way in which the Act refers to and uses the phrase “party”, in particular to adjudicate between the rights of ‑ including between the rights of D1 and D2.
On that point, your Honours, may I take you now to sections 103 and 104 of the Act. These are provisions to which I will be referring shortly. Sections 103 and 104 deal with cross‑examination as to credibility, and they contain the credibility rule and the disapplication of that, and make provisions for the cross‑examination of D1 by D2. Of course, this is an example of the Act adjudicating on the rights as between D1 and D2 in a particular trial in a way that was not accommodated for at common law and is the subject of many of the authorities on which my learned friend relies. I will come back to that point when I take your Honours through the common law – when I make my submissions on the common law.

A similar submission exists in relation to sections 111 and 112 – at page 66 of the joint book of authorities – and that is cross‑examination on character – I am sorry, “Evidence about character of co‑accused”. Of course, there is a leave requirement there in section 112. And if I may take you to section 192, your Honours – it is at page 111 of the joint book of authorities. Section 192 applies where leave is required to a party to do a particular thing in a proceeding. I draw your Honours’ attention to subsection (2)(b), which imports into the consideration of leave on every occasion:

the extent to which –

the grant of leave:
would be unfair to a party –

So, if one was seeking leave under 103 and 104, the trial judge would be required to consider the matters set out in 122, including the possibility of unfairness.
If I could turn briefly to extrinsic materials. The extrinsic material that is available indicates that, at least where a co‑accused seeks to adduce similar conduct evidence, the ALRC intended that section 135 confer upon a trial judge the discretion to exclude the evidence. So, your Honours, we have seen that section 97 imposes on an accused, as it does on the prosecution, the requirement that the evidence have significant probative value and, as your Honours know, where it is the Crown leading that evidence, one also has to satisfy section 101, which applies only to prosecution evidence.

However, the ALRC report – which is at the joint book of authorities 1091 – suggests that section 135 would also operate in that scenario. I do wish to make the point that, given the requirement of significant probative value, it would be, in our submission, a fairly infrequent occurrence that one would then look to 135 on such application.

Your Honours, your Honour Justice Gordon, I think, was raising with my learned friend in the morning the statements by the Law Reform Commission at paragraph 811 of the 1985 report – that is extracted in the materials at joint book of authorities 1091. Your Honours will see that the Law Reform Commission stated that:

Where it is a co‑accused, not the prosecution, who seeks to adduce similar conduct evidence, the present law is correct in not requiring a threshold level of probative value, because of the concern that an accused be allowed to tender all evidence consistent with his innocence. But . . . if adduced for specific propensity reasoning –

that threshold should be imposed in the view of the Commission. And it:
should satisfy requirements of similarity in order to achieve more than minimal probative value.

The Commission then went on to say:
Further, if no judicial discretion exists in this area it is suggested that it should be introduced –

So, there is ambiguity there as to whether it did exist at that time in the view of the Commission. It is certainly not saying that there is not a discretion contrary to the submission made by my learned friend. Then the footnote to paragraph 811 is a reference to draft clause 114, which is the 135 discretion – although I accept the point made by my learned friend that in draft it did not include the words “to a party” – clause 114.
So, using the Lowery example, the admissibility of that evidence in King’s case would be dependent on King satisfying the court that there was that threshold level of probative value and no unfair prejudice to D2, bearing in mind the lower standard of proof.

In relation to the submission made against us on clause 114 and the intention of the Law Reform Commission, and the fact that clause 114 did not mention – or did not include the word “party”, in our submission, the insertion of the term “unfairly prejudicial to a party” in 135(a) is simply because prejudice must be measured against a person, it cannot be an unfocused assessment. And in a criminal trial, prejudice is always assessed by reference to the interests of a particular party. Thus, the insertion of the words “to a party” is simply a commonsense refinement of clause 114 to become 135(a).

The appellant does not point to any extrinsic material to support his argument that Parliament added the term “party” to constrain the application of section 135 to a party in a separate trial, and I make the point again that section 135 applies to all proceedings and the introduction of the term “party” could not be directed to indictable trials only.

Still on the extrinsic materials, may I just draw to your Honours’ attention the observations in the 2005 report, which is extracted in the joint book of authorities at 1095 under the heading “Statutory amendment”, paragraphs 8.47 and 8.48. The Commission observed – and this in the context of a section 65 exception to the hearsay rule ‑ ‑ ‑

STEWARD J:   Sorry, what paragraph was that?
MS DOWLING:   Paragraph 8.47, your Honour, and 8.48.
STEWARD J:   Thank you.
MS DOWLING:   They refer to the observations of his Honour Chief Justice Gleeson in this Court on a special leave application in Suteski that:
‘[i]f the ultimate safety net is [Part 3.11], then you do not need to torture the language of section 65 to read in some assurance of reliability.

The Commission goes on to say that:
While the admission –

we say that is a reference to 135:
and the use of –

and that is a reference to 136:
evidence from . . . a co‑accused can be controlled by ss 135‑137, amendment –

and then they go on to discuss the relative merit of the meaning in section 65. But that statement in the first part of the first sentence of 8.48 is a recognition by the Commission that, in their view, those sections operated when the evidence is being adduced by a co‑accused.
If I can turn now, briefly, to the historical and procedural context in which the Evidence Act stands to be construed. It is a function of the indictment to invest the trial court with the jurisdiction to hear and determine the prosecution, and I refer your Honours to the five‑judge Bench decision of the New South Wales Court of Criminal Appeal in Swansson, which is in the JBA at 1010:

The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned –

and that is found in section 130 of the Criminal Procedure Act:
in a trial upon indictment –

and the appellant accepts this:
the jury is, and can only be, impanelled and sworn to try the issues –

on a single particular indictment, thus:
the simultaneous trial of several indictments –

before one jury, or one tribunal of fact:
is impossible –

and the court will not have jurisdiction. I refer your Honours generally to Munday v Gill in that regard. However, criminal liability is, in all cases, personal. For that reason, every person must answer severally for his or her own crime. In the materials, there is an extract from The Pleas of the Crown, and, also, the decision of the House of Lords in Merriman – I will come to Merriman in a moment.
For the conviction of a – before a person may be convicted of a particular instance, individual guilt must be established. However, personal liability can arise from a joint act with another person which is, in itself, criminal, such as a conspiracy or participation in a joint criminal enterprise. Guilt might be proven by showing that, although the accused did not, him or herself, commit the physical act of the offense, that he or she caused or directed it to happen, or was in an agreement with other co‑accused or co‑offenders. And, of course, it may be that two individuals who are joined together with a common purpose, so as to make each the agent of the other for the purpose of concepts of the attribution of the criminal act.

A single indictment of multiple accused will be presented where the matters charged arise out of one transaction. When this is the charge, it is described as a joint charge. That is why in Merriman, Lord Justice Morris stated that:

there is no magic in speaking of a joint charge.

Any charge of joint liability is also a charge of individual or several liability. If I could take you briefly to the decision in Merriman, in the joint book of authorities at 438 – at c, please, your Honours. For the benefit of my learned friend, it is (1972) 3 All ER 42, at page 59, and in the joint book it is 438 at c. His Honour Lord Diplock states, from the beginning of paragraph c:

The source of the confusion lies, I believe, in the equivocal use of such expressions as ‘joint offence’ and ‘joint charge of one offence’. It is hornbook law that . . . the offence of one man cannot be the offence of another –

GORDON J: Sorry, what page is this?
MS DOWLING: I am sorry, it is at 438 of the joint book of authorities.
GORDON J: Thank you.
MS DOWLING: Thank you. Just going down to paragraph d. So, the passage upon which we rely is points c and d on the page. At d, Lord Diplock notes that:
A ‘joint offence’ of two defendants means no more than that there is this connection between the separate offences of each, so that as against each defendant not only his own physical acts but also those of the other defendant may be relied upon by the prosecution as an actus reus of the offence with which he is charged.

Where multiple accused are joined in one indictment – and the prosecution relies upon principles of complicity – criminal liability remains personal. Typically, where the Crown alleges a common purpose, it is not an element of the offence but a basis of liability, and there may be no reference to complicity in the charge or on the face of the indictment.

In such a proceeding, it may be open to the jury to be satisfied of the guilt of one, or both, or neither accused, depending on how the evidence falls at trial. Indeed, of course, in this case, the trial judge properly directed the jury that they might convict either the appellant or Rogerson if they failed to find that they acted in concert. The appellant relies on the decision in Stringer, which is in the joint appeal book at page 964, your Honours, if I could take you to that.

JAGOT J:   Sorry, what was the name?
MS DOWLING:   Stringer, at 964.
GORDON J:   It is at tab 43.
JAGOT J:   Thanks.
MS DOWLING: It is [1933] 1 KB 704. The decision in Stringer is not inconsistent with there being the proposition that there is a single proceeding when two accused are charged on a joint indictment. The issue in Stringer was whether an accused could be charged with a count of manslaughter and one count of a statutory offence of dangerous driving arising from the single incident. The reference by Lord Hewart, the Chief Justice, that:
each count in an indictment is really a separate indictment –

was to demonstrate by charging those two offences on a single indictment did not give rise to issues of double jeopardy. That passage is at 972, page 712 of the joint book of authorities.
In a similar vein, separate verdicts represent the several nature of a joint indictment. We further say that the appellant’s reliance on Latham v The Queen in 1864 is misplaced. Because criminal liability is several, it is always possible for one of multiple jointly charged accused to submit that the circumstances are such that he or she should be tried separately. If separate trials are ordered, a fresh and new indictment must be presented against each accused.

So, in our submission, the references that one sees to separate trials, in the authorities of co‑accused persons on a joint indictment, should not be understood to mean separate proceedings. In substance, each accused is simply joining issue with the Crown on the particular issues arising from that person’s plea – that accused’s plea – of not guilty to the charge or charges against that accused.

Whilst each accused is separately joined in issue with the Crown on the issues charged against the particular accused, a single jury is impanelled and sworn as a single tribunal of fact to try all of the issues on the indictment. I refer your Honours to Munday v Gill in this Court. Continuing that argument – or developing that argument – in any appeal against conviction, it is the several or personal conviction of the appellant which is the subject of the appeal, not the whole charge, or all of the counts in the indictment, or all of the accused who may be jointly charged in the one count.

Can I take your Honours now to the decision of Justice Howie in Swansson (2007) 69 NSWLR 406. That is at appeal book 1014, and the passage is towards the end of the judgment, your Honours, in the joint book of authorities at 1014, page 436. The discussion really starts at page 435, which is 1013 of the joint book of authorities. Your Honours will see that his Honour Justice Howie makes a comment on the one indictment, one jury rule, and at paragraph 184 refers to the judgment of Justice Sully. On the last line on the page, his Honour notes that:

where there is more than one charge, or against multiple accused, who are charged in the one indictment.

there will be a “single indictment presented”. Of significance in responding to the appellant’s argument, over the page at paragraph 186, his Honour addressed the submission made, ironically, by the Crown in that case, drawing attention to the conventional jury direction that there are separate trials; that they are, in effect, separate trials that the jury is considering. Halfway down the paragraph, his Honour says:
I do not believe that a trial judge intends the jury to understand that there is literally more than one trial actually taking place. The direction is intended to make it clear that separate consideration must be given to each of the allegations in the indictment.

GAGELER ACJ: Is that still the conventional way of addressing the jury?
MS DOWLING: There are many different ways that trial judges adopt. The jury’s attention is always drawn to the fact that they must consider the case against each accused separately. Some judges make this analogy: say, it is as if you are – it is, if in effect, separate trials happening. Other judges do not employ that terminology. But, as his Honour notes halfway through the paragraph:
The direction is intended to make it clear that separate consideration must be given to each of the allegations in the indictment.

GORDON J: I think that is made clear regardless as part of the ordinary conduct of a criminal trial.
MS DOWLING: Yes. Even in a case where all of the evidence is exactly the same against each accused, and there is no positive defence case that is advanced, that is the conventional direction that is given.
GORDON J: Thank you.
MS DOWLING: Although, in most cases involving – or in many cases involving multiple accused, there are nuances as between the cases that are led – or the issues that are joined between the Crown and each party. So, in our submission, there is a fundamental difference between separate trials taking place in the one proceeding and separate proceedings. In any event, your Honours, the focus must be upon the interpretation of the term “party” in section 135(a). This system of presentment of indictments in joint trials is centuries old and it must be assumed that when the Evidence Act was enacted, the legislature was well aware of these characteristics of criminal procedure. The evidentiary rule of exclusion in 135 using, as it does, the word “party”, must be taken to operate within this established framework.
Your Honours, if I could now come to address your Honours on the relevance and state of the common law, to the extent that the common law bears on the question of the proper construction of section 135(a), in our submission, there was not a clear departure from the common law as put by the appellant because there was common law authority in Australia to support the existence of the discretion, albeit that it was unsettled as between jurisdictions.

The contention that before 1995 the settled common law position was that a trial judge did not have a discretion to exclude evidence adduced by D1 that was prejudicial to D2 on the application of D2, in our submission, is not correct, and it is indisputable, in our submission, that the Victorian Full Court certainly favoured the existence of such a discretion, and that is seen in the decision of the Full Court in Lowery and King (No 3), in Darrington and McGauley and Gibb and McKenzie. Each of those cases contained a detailed analysis of the question of the existence of such a discretion, and I will come to them shortly.

If I could start, however, with Lowery and King (No 3) [1972] VR 939 which is heavily relied upon by my learned friend, that is at 842 of the joint book of authorities. As your Honours are no doubt aware, in that case, at the close of the Crown case Lowery went into evidence in his case and gave evidence that exculpated him and sought to inculpate King. In King’s case, which followed Lowery’s case, King adduced psychiatric evidence about Lowery’s violent propensities and his – King’s – emotional shallowness and predisposition to being dominated by a person like Lowery. So, really it was a cutthroat defence being run through the expert evidence.

This evidence from King was adduced in the context where Lowery’s case, which went first, was that, in substance, King had killed the victim, Lowery was in fear of King, Lowery had no motive and would have been unlikely to ruin his good prospects in life and not interested in the sort of sadistic conduct that clearly was engaged in by the killer. In this decision, the Victorian Full Court held it was open to the trial judge to refuse to exercise his discretion to exclude the evidence adduced by King which was prejudicial to Lowery.

If I could take you to 842 of the joint book of authorities – that is at 947 – so, using the terminology of the Evidence Act, this evidence was character evidence, it was tendency evidence – or propensity evidence – perhaps credibility evidence as well, and clearly if it was being adduced in New South Wales in 2023, aspects of it would be dealt with those provisions of the Act that I have already taken your Honours to. At point 5 on the page, the Full Court noted that:

The considerations applicable when such evidence –

propensity evidence:
is sought to be led by the Crown against an accused person are by no means the same as when it is led by an accused –

and there is a reference to Miller, which I will come to in a moment. Then going to the passage that your Honour Justice Gordon referred to earlier in the day:
In the latter class –

that is, accused against accused:
one important differentiating consideration is the need for an accused person to be left unfettered in defending himself by any legitimate means –

and that use of the word unfettered is the language from Murdoch v Taylor. However, the Court goes on at line 35 to note that:
what fell to be assessed in this case was not the relative positions of the Crown and the applicant –

but rather the relative positions of D1 and D2. At line 40, the Court observes again that those relationships are not the same. The Court says:
As it is fundamental to the administration of criminal justice that a person accused must be completely free to meet the charge against him by all legitimate and relevant means, it cannot, in our opinion, be said that the learned Judge acted unjustly or unreasonably by exercising his discretion to admit evidence which was relevant to disprove the guilt of King.

Then the next sentence is the specific engagement of the balancing exercise that is required in 135, that it is now required in 135(a), that balancing of the probative value of the evidence to King when:
compared with the prejudicial effect on the defence of Lowery –

GORDON J:   Could you just explain something to me which I do not quite understand, and that in next paragraph from line 51 onwards, where they say we are not dealing with the broader proposition – what is the broader proposition or the “wider proposition” they are referring to there?
MS DOWLING:   This is at line 51, your Honour?
GORDON J:   It starts at line 51:
We should perhaps say that . . . submitted that –

and then they say:
Having regard to the reasons we have already given . . . unnecessary to determine this wider proposition.

MS DOWLING:   That is the wider proposition that – I understand that to be a reference to the Makin proposition that it is never admissible – propensity evidence is never admissible.
GORDON J:   I see.
MS DOWLING:   It goes over the page, there, to state that the Crown was wanting to go further to say that there was never a discretion. And at point 5 on page 843, or 948 of the report, the Court notes that:
As we are of opinion that the discretion – assuming the learned judge to have possessed it – was rightly exercised in the present case, we also find it unnecessary to rule –

on that broader submission made by the Crown there. If I could take you now to the decision of the Full Court in Darrington ‑ ‑ ‑
GAGELER ACJ: Are you going to say anything about the Privy Council?
MS DOWLING: I am.
GAGELER ACJ: Good.
MS DOWLING: I can say that now. So, the Privy Council decision is found in the appeal book, joint book of authorities page 621 – that is [1974] AC 85.
JAGOT J: Sorry, what page did you just say?
MS DOWLING: I am sorry, it starts at – judgment starts at 621 of the joint book.
GORDON J: Tab 23.
MS DOWLING: I am sorry?
GORDON J: Tab 23.
MS DOWLING: Thank you. If I could draw your attention to page 629 of the joint book at B, page 93, where Lord Morris, who delivered the judgment, noted:

The appeal now brought by Lowery is based principally upon the contention that the evidence of the witness above referred to should not have been admitted.

Notes that the evidence was called by King, and then the next part of the judgment is a statement from the lower court. If I could draw to your attention at joint book of authorities 634, line E, the important proposition that Lord Morris makes, that:

When the time came for the evidence by and on behalf of King to be presented the position was that not only was there the Crown case that both accused had acted in concert but that there was the testimony of Lowery that it was King who had been the killer and that he (Lowery) had been physically overborne –

so that is a particularly prejudicial position in which King was put. And then, at line G:

It was in this setting that the witness Professor Cox was called –

At H, point H, on the page, there is a reference to the argument:
that the evidence . . . was of no probative value –

and that the Makin rule should apply equally to a co-accused. Then, the issue that was, as it crystallised before the Privy Council, was described at C, on page 99 of the report:
whether the evidence was (a) relevant and (b) admissible –

And then there is a reference to the Christie discretion where the prosecution is leading that type of evidence, at the bottom of C. The discussion in the Privy Council was whether the admission of the evidence was correct, not whether there was a discretion to exclude. The question that was considered by the Full Court in Lowery (No 3) was not considered in terms in the Privy Council.
GAGELER ACJ:   There is a passage in the Privy Council’s reasons which is, I think, relied upon against you – page 102, about letter F – which is a quote from the Court below.
MS DOWLING:   Yes. That is the passage that I went to earlier when looking at Lowery (No 3) which did not doubt the existence of the discretion but just said that it was properly not exercised to exclude the evidence in that case. If I could interpolate there, the Crown accepts that the exercise of the discretion will be unusual – it is not a common case where a scenario such as this arises. In the authorities referred to, it has arisen in a single judge decision in Quami in New South Wales and in, I think, Hills in the Northern Territory since the admission of the Evidence Act and has been used to exclude the evidence. But it is not a frequent occurrence. That is consistent with the observations of the Victorian Full Court in Darrington and in Gibb and the cases that consider those later on, that it is a discretion ‑ ‑ ‑
GORDON J:   It should be exceptional – it is an exceptional ‑ ‑ ‑
MS DOWLING:   That is right – to be exercised with caution.
GORDON J:   To be exercised with caution – and the cases where it would be excluded would be few.
MS DOWLING:   The fact that it is ‑ ‑ ‑
GORDON J:   You accept those propositions are inconsistent with what you have just put to us.
MS DOWLING:   Yes – that is, the exceptional and cautious application of a discretion is very, very different from the proposition that there is no discretion – which is what has been put against us. If I could take you briefly to the decision in Darrington ‑ ‑ ‑
GORDON J:   Sorry, just to take you back to the question Justice Gageler asked, is that because – just so I understand the Crown’s position – that which is set out that, absent exceptions and absent a very few cases where it might otherwise exist, you would expect defence to be able to lead evidence relevant to their innocence.
MS DOWLING:   Yes, yes, that proposition is, as a general proposition, the Crown accepts the correctness of that. We do not agree that it is a fundamental principle in the kind discussed in Coco but that is a separate issue. But it is absolutely an approach that should, and is, taken by a trial judge as the proposition that evidence that is relevant is admissible – 55, 56 – and an accused person should be permitted to run whatever defence they want to run through all the legitimate means, to pick up the language.
GORDON J:   Some of the commentary has suggested that, if you are looking at the “principles” – and I put that in quotes for the moment – against which the Evidence Act was drafted, one was that which was, in effect, a flipside or mirror of the other proposition that Crown must hand over and lead all evidence that is positive in the accused’s favour. Do you accept that as well?
MS DOWLING:   Yes. Could your Honour repeat them?
GORDON J:   Certainly.
MS DOWLING: Thank you.
GORDON J:   Some of the commentary suggests that when one is looking at, in effect, the things against which the Evidence Act was drafted, there are a number of propositions; relevant for the present purposes is the one that we have just been discussing, that is, absent exceptional circumstances and with caution, an accused should be entitled to lead evidence in its defence that it wishes to lead. The other is that the flipside, or the corollary, is that, of course, the Crown must hand over all that evidence which is unfavourable to the accused’s position.
MS DOWLING:   Yes, the obligation of disclosure.
GORDON J:   Yes.
MS DOWLING:   Yes. The Crown absolutely adheres to those both and agrees with both those propositions. Your Honours, Darrington ‑ ‑ ‑
STEWARD J:   Just before you move on, do you say that the word “legitimate”, which was used in Lowery (No 3) and picked up in Darrington, that was the metes and bounds of the common law exception to the usual rule that the defendant is free to lead evidence, and is it your submission that the word “legitimate” – that that concept is now enshrined in 135?
MS DOWLING:   And other provisions. “Legitimate” would pick up and refer to any exclusionary rule – that would reflect the rule against hearsay, the rule against ‑ ‑ ‑
STEWARD J:   Well, 135 is an aspect of that.
MS DOWLING:   Yes.
STEWARD J:   I see.
MS DOWLING:   There are other aspects of that that – and public interest immunity is another example of where evidence will not be available to an accused or permitted to be adduced in a defence case.
GORDON J:   Well, the two examples are PII and legal professional privilege.
MS DOWLING:   Yes, and also 294CB of the Criminal Procedure Act, evidence of sexual reputation in a sexual assault case is a good example. So, there are a multitude of pieces of relevant evidence that an accused does not have available to them, legitimately, to tender in their case.
Turning now, if I may, to the decision of the Full Court in Darrington v McGauley [1980] VR 353, it is 712 of the joint book of authorities. At 743 of the joint book his Honour Justice Jenkinson considered the two Lowery decisions. The facts in Darrington are somewhat complicated and I do not propose to go through them, given the time, but at 743, line 25 of the book, Justice Jenkinson considers Lowery and King (No 3) and notes:

The question was left undecided by this Court in R. v. Lowery and King (No 3) . . . and was not raised for the consideration of the Privy Council, whether any discretion resided in the trial Judge to exclude admissible evidence tendered by one of two or more accused jointly charged with an indictable offence and tried together.

His Honour then goes down at line 50, and picks up, refers to the statement that:
a person accused must be completely free –

to run their case:
by all legitimate and relevant means –

the bottom of the page there. But then, importantly, in our submission, he goes on to say:
But there are considerations just as fundamental and, in my opinion, of greater weight in favour of the conclusion the at the freedom claimed is subject to discretionary control by the trial Judge.

And then his Honour gives three reasons for that. Jury considerations is the first, secondly is the desirability of a joint trial in a matter such as this, and thirdly is that the “probative value” may be well and truly outweighed or “slight enough” – this is line 17:

slight enough to justify . . . subordination of the interest of the accused . . . to those other interests which the system of trial of criminal issues by jury is designed to serve.

His Honour concludes that:
Those three considerations . . . lead to the conclusion that a discretion is reposed in the trial Judge to exclude evidence otherwise admissible which is tendered by one of several accused in disproof of his guilt –

STEWARD J: Did Justice Anderson express a contrary view on that principle?
MS DOWLING: No, your Honour. He approached it as a question of relevance only.
STEWARD J: All right.
MS DOWLING: Gibb and McKenzie is the third of the pre‑Evidence Act, pre‑1995 Victorian Full Court decisions. That is the next tab, I believe, in the joint book of authorities. That is [1983] 2 VR 155, and the relevant passage is at 754 of the book, at line 40. There is express application or reference to the discretion referred to in Darrington and McGauley and in Lowery v R, with the caution that the:
exercise of discretion will necessarily be rare.

In my submission, it is not an example of a faint endorsement of that principle at all, as suggested by my learned friend. There are two decisions that Mr Reynolds also referred to in oral argument to suggest that Darrington has been doubted in subsequent decisions. The first of those – and I believe they have been sent through to the Court over the lunch break – again, the Court of Criminal Appeal of Victoria, in the matter of The Queen v Carranceja (1989) 42 A Crim R 402, and Darrington is referred to at page 407 of the report at about point 6 on the page, your Honours, where the Court notes, after referring to Darrington and McGauley:
Broadly speaking, the discretion to exclude the evidence in Darrington was upheld by this Court because the evidence was either irrelevant or unable substantially to improve the case for the accused on whose behalf the cross-examination was made, or alternately, that its probative value was slight compared to its prejudicial effect –

So, that is not a stepping away from that proposition, in our submission.
GORDON J: Especially because they go on to cite Murdoch v Taylor and Lowery and King (No 3).
MS DOWLING: Yes. Similarly, it was put against us that the decision of the Court of Appeal of Victoria in R v Su & Ors [1997] 1 VR 1 also marked a distancing by the court from the proposition in Darrington. At page 66 the Court of Appeal refers to Darrington and McGauley at the top of the page, and they again observe that it would be an “exceptional case” and refer to Lowery and King (No 3), Darrington and Gibb and then go on to say that in that particular case the evidence was:
not only of limited probative value . . . but the means . . . were not . . . “legitimate and relevant –

GORDON J: The only other case I could find, which is just one line, which is probably not helpful, is Justice Bell in Taylor in the New South Wales Court of Criminal Appeal where her Honour says in one line – a decision which was decided in 2003 – at paragraph 130:

I consider the occasions on which the exercise of the discretion under s 135 to reject evidence tendered by an accused in the course of criminal proceedings will be few.

MS DOWLING: Not non‑existent, but to be carefully and cautiously exercised, and the Crown accepts that proposition. I do wish to acknowledge, there are two decisions of the New South Wales Court of Criminal Appeal that held that there was no discretion prior to 1995, and they are the decisions in Visser and Murray, to which Mr Reynolds has referred. However, in neither of those New South Wales case was there any detailed consideration of authority or principle of the kind that we see in Darrington and Gibb and McKenzie, and to the extent that there is tension between those intermediate appellate courts, the preferred – the authorities of the Victorian Full Court are unquestionably stronger authorities due to the ‑ ‑ ‑
STEWARD J:   So, New South Wales prefers Victoria today?
MS DOWLING:   I cannot believe I am saying it, your Honour. You may never hear me say it again, in this limited case. If I could briefly address the decision of Lord Devlin in Miller, which is in the joint book of authorities at 850 – that is (1952) – I am sorry, I am just looking for the citation for my friend.
GORDON J:   It is in tab 35.
MS DOWLING:   Thank you. Miller was a single judge decision. It does crop up in much of the case law. Of course, it is Justice Devlin before he was Lord Devlin. In that case, starting at 852 of joint book, his Honour states “The fundamental principle” at the beginning of the judgment, and the principle is:
it is not normally relevant to inquire into a prisoner’s previous character –

because it could lead to tendency reasoning, propensity reasoning, and that questions are “inadmissible” not because they are “prejudicial”, but because they are legally “irrelevant”. He then distinguishes between the principles to be applied to the adducing of such evidence by the prosecution and when evidence like that is sought to be adduced by the defence. And then, the famous statement is, at about point 8 on page 852 of the joint book, where counsel’s “duty” is:
to adduce any evidence which is relevant to his own case . . . whether or not it prejudices anyone else.

However, Justice Devlin does go on to qualify that seemingly broad statement over on the next page at 172 of the report. He notes that, that:
does not open the field to any question –

asked by a co-accused that goes against character. It has to be relevant, and that, in our submission, is legally relevant:
Secondly . . . care ought to be taken not to go any further than is strictly necessary for the proof of the relevant point –

and that is the same care that is required of the prosecution, the obligation of “restraint”. And then, thirdly, there is a requirement for notice to be given by one accused to another. And over at 173, his Honour refers to the ultimate release valve of a separate trial.
GORDON J: Is the other release valve that which appears at the foot of page 173?
MS DOWLING: Yes. His Honour is – on that paragraph, that is, starting halfway down that page, his Honour is looking at the considerations relevant to a separate trial application, and stresses that “the interests of justice” are to be considered. And:
the interests of justice are not necessarily the same as the interests of the prisoner.

In a particular case. Over the page, his Honour observes that:
The cases must be rare in which fellow-conspirators can properly in the interests of justice be granted a separate trial.

STEWARD J: Sorry, whereabouts on the page is that?
MS DOWLING: That is 174, at about point 2, your Honour.
STEWARD J: Thank you.
MS DOWLING: And refers to “the difficulty” that one encounters in a cutthroat trial. And over the page, at 175 of the report, your Honours, Justice Devlin expresses a view that this was a case that needed to stay together, and:
it needs a very strong and exceptional case before it is split up into two separate trials.

And his Honour notes that:
If separate trials were to be ordered as a matter of course simply because one prisoner proposed to attack the character of another, then a separate trial, and the possible advantages in the case of the guilty prisoner, could always be obtained simply by the threat that one prisoner proposed to attack the character of his fellow‑prisoner. . . . I have not ignored the desirability, where it is possible, of excluding these matters from mention in the presence of the jury.

So, there does seem to be the glimmer of recognition that there is a discretion there. So, in our submission, Miller is not, perhaps, as clear an authority as my learned friend submits.
Returning to the proper construction of the Act, insofar as section 135A falls to be interpreted having regard to the common law as it stood at the time of the commencement of the Act, in our submission, there is compelling Victorian intermediate appellate authority that recognises that the trial judge did have a discretionary power to exclude evidence sought to be led or tended by an accused over objection of a co‑accused in a joint trial.

As the CCA noted in 537 of the judgment, Victorian authority after 1995, which is after the introduction of the New South Wales Act but before the introduction of the Evidence Act (Vic) continued to confirm the existence of the discretion to exclude – and of course, the Victorian section 135 is in the same terms as the New South Wales section. In our submission, the CCA correctly concluded that the position at common law prior to the enactment of the Evidence Act in New South Wales was that there was a discretion – albeit one carefully and cautiously to be exercised because of its potentially prejudicial of a co‑accused in a joint trial.

Your Honours, if I could just briefly address on the notion of legitimate means and how that has been addressed in some of the case law. In our submission, care must be taken in considering what is meant in the case law by the unfettered right of an accused to defend himself by any legitimate means. The phrase originally derives from a decision in Murdoch v Taylor, which is in the joint book of authorities at 652. It is a House of Lords decision, I do not have the citation, I am sorry. In that case, what was in issue was the right of D1 to cross‑examine D2 on character.

The right of D1 to cross‑examine D2 is a right that derives from the provisions of section (1)(f)(iii) of the UK Criminal Evidence Act 1898. That is a right that now is found in section 27 of the Evidence Act – that is, the right to cross‑examine. At 660 of the joint appeal book – which is page 8 of the report, I think – I do not know which page it is, sorry. At 660 of the appeal book, at about point 8 on the page, Lord Donovan says:

On the question of discretion –

that is the discretion to prevent the cross‑examination:
I agree with the Court of Criminal Appeal that a trial judge has no discretion whether to allow an accused person to be cross‑examined as to his past criminal offences –

He goes on to say:
Proviso (f)(iii) –

in subsection (1) of the Criminal Evidence Act:
in terms confers no such discretion and, in my opinion, none can be implied.

and then notes that there is a discretion in relation to (1)(f)(ii). So, it is clear that that phrase when used in Murdoch v Taylor was very much directed to the specific situation that inhered in that case by reference to that legislation.
GORDON J:   I must say – I am sorry, you go.
GAGELER ACJ: So – where is the terminology used?
GORDON J:   I had thought it was Lord Morris of Borth‑y‑Gest back on page 2, who was using it in about the last paragraph.
MS DOWLING:   Yes, the majority – the other judges who agree with Lord Donovan are Lord Reid and Lord Evershed, and Lord Morris does make that – he refers to “legitimate means” at page 2 of the report, which is 654, at about point 6.
GORDON J:   Yes, but importantly he qualifies it by saying that it:
does not . . . mean that the judge has no function to discharge.

MS DOWLING:   Yes, however, the part of the decision that is conventionally relied on is that of Lord Donovan, and the reference to fettering the right of the accused is at page 9 of the report.
GAGELER ACJ:   So, the whole point of going to this is just to look at the provenance of this language that appears at page 2?
MS DOWLING:   And that the cases – this was a decision that was directed to a particular statutory right, and the question of whether there was a discretion in that case arose out of the construction of section 1 of the Criminal Evidence Act (UK).
GAGELER ACJ:   So, the equivalent here would be a question arising under, what, section 103?
MS DOWLING:   Section 27, then 103 and 104.
GAGELER ACJ:   Yes.
MS DOWLING:   Yes.
GAGELER ACJ:   That would be the equivalent statutory question within New South Wales.
MS DOWLING:   Yes, that is right, and all of the other – the cross‑examination and the character cases, if they are brought in New South Wales now or post‑1995, would be dealt with under 103 and 104 of the Evidence Act. Of course, there is a discretion under the Evidence Act under 103 and 104, combined with the lead requirements of 192. So, the discretion is unquestionably enshrined in the Evidence Act in relation to this type of application.
Murdoch v Taylor was picked up in Lowery (No 3) and that language of unfettered, should be left unfettered “to defend himself by” any “legitimate means” is picked up there. That phrase is also used by the Privy Council in the decision of Lui Mei Lin in 1989, which my learned friend has referred to. That was another decision which was on identical legislation to that considered in Murdoch v Taylor. That is the Hong Kong equivalent of section 1 of the Criminal Evidence Act 1898 and the Privy Council confirmed that there was no discretion and followed its earlier decision.

Similarly, Lobban in the Privy Council, which is the appeal from Jamaica, is also on the same – the equivalent Jamaican provision. So, those decision, we say, have to be read in light of the limited – of the particular statutory regime in which the question stood to be assessed in those cases, and as I have already adverted to, the situation in New South Wales and other Evidence Act jurisdictions is now dealt with by sections 103 and 104. So, those authorities do not support the unconditional proposition that an accused’s right to adduce evidence is completely unfettered or at large, and to the extent that the appellants suggest otherwise, that submission – the appellant, singular, suggests otherwise – that submission should be rejected.

If I can refer briefly to the decision of the Western Australian Court of Appeal in Winning – which is in 2002 – that is joint appeal book 1060. I do not propose to take your Honours to that because that decision, we say, is of no assistance in the construction of section 135. The evidence in that case was evidence of criminal convictions. It was relied upon as tendency evidence, or character evidence, and in New South Wales the question of its admission would be governed by sections 97 and 135 – and, in addition to that, sections 103 and 104, plus the leave requirement in section 192.

So, your Honours, as this consideration of the case law and the other provisions of the Evidence Act indicates, the Evidence Act displays a much more nuanced set of principles to promote a fair trial of multiple accused than my learned friend seeks to present in his submissions. There is not an unfettered right of an accused to lead any evidence in his case that is relevant to his innocence. That right is fettered by the provisions of the Act in 97, 98 and sections 103, 104, 111, 112; leave provisions of 92 and, we say, also 135 and 136. We say, in the same vein, that the clear words of 135(a) mean that D2 continues to not enjoy a completely unfettered right to lead evidence that will prejudice D1.

A few points before I sit down, your Honours. I hope that this submission developed this afternoon indicates the proposition that my learned friend agreed with – that in a criminal trial the only balancing happens between the Crown and D1 or the Crown and D2 and never between D1 and D2 – we say is not supported by a consideration of the Act in the way that I have just taken the Court to. On that point, I can just note, parenthetically, that the evidence in this particular case was found to have a minimal probative value and to have been highly prejudicial.

STEWARD J: Minimal.
MS DOWLING: Minimal. Responding to a submission made by my friend as to the practice of what he calls “tacking”, in my respectful submission, that is not how criminal trials work in practice. The Crown has not asked to adopt evidence that is led by D1 and if that is not adopted – the practice described by my learned friend is not one that is known to counsel at this Bar table. The Lowery factor is a really good example of how that cannot work, because the Crown case there was that that was joint criminal enterprise between King and Lowery to commit that murder together. The Crown was not going to adopt either Lowery’s cutthroat defence or King’s cutthroat defence. Yet, that evidence was there and would operate disadvantageously to King if he was not permitted to respond to it in the way that he was.
In the appellant’s outline, there are numerous cases referred to at paragraph 3. Those cases all refer to different situations. Some situations are analogous to the situation in this case, others of those cases deal with tendency evidence or propensity evidence, which would fall under 97 of the Act. Some are character cases. Lowery is a section 111/112 case. So, they all raise different issues, different factual considerations for the exercise of a discretion to exclude in different ways.

In our submission, the eight protections available to an accused person described by my learned friend do not assist this Court to construct the meaning of the words “a party” in 135(a). The fact that there are multiple safeguards within the Evidence Act and available according to criminal procedure do not assist the special leave question that is before the Court. Would your Honours excuse me for a moment?

Your Honours, those are the submissions on the special leave point. I am in your Honours’ hands as to the extent to which you wish to hear from the Crown on the issue of the proviso. In relation to the nature and effect of the error, we have made written submissions on that – and the extent to which the verdict can be used, we have made written submissions about that. Oral submissions would be addressed to the facts in the case.

GAGELER ACJ: The case has been set down for one day. It is important that the appellant has an opportunity to reply.
MS DOWLING:   Yes, your Honour.
GAGELER ACJ: This is your argument, Ms Dowling. We, of course, have read your written submissions. I understand your primary submission to be that if this point is reached, there should be a remitter.
MS DOWLING:   Yes, your Honour. The Crown accepts that not all of the material is available, and unless the appellant accepts all of the factual findings of the CCA in the appeal judgment, then submissions have not been made by the appellant as to factual disputes, and only some of the material is before the Court of the underlying factual material.
GAGELER ACJ: So, what you are saying is that we cannot make the necessary assessment in the event of dispute of the facts that you assert?
MS DOWLING:   Yes, and it is not clear yet what the appellant’s position is on that. However, I am conscious that my learned friend does urge upon the Court that this Court would be in a position to make that determination.
GAGELER ACJ: Well, I think we understand your position.
MS DOWLING:   Thank you, your Honours.
GAGELER ACJ: Thank you. Mr Reynolds.
MR REYNOLDS:   Your Honours, so far as the proviso is concerned, we respectfully suggest that this Court should deal with the matter. It is a question of how best for that to occur. There was no notice of contention that was filed in the relevant period, as a consequence of which, this issue is not dealt with at all in our submissions in‑chief. It is dealt with, briefly, with the limits of the page limit for a reply, along with a whole lot of other things.
As your Honours appreciate from the authorities, a review of the evidence in accordance with proviso principles is very similar to the exercise conducted, for example, in Pell, in an unreasonable or unsafe verdict case. So, in order for my client adequately to deal with that argument, we would need to deal with that in some detail. What I respectfully suggest would be an appropriate course – subject, obviously, to your Honours’ views – is that we respond in writing to the argument that has been put against us in full, and that a limited reply be available to the Crown and, obviously, there would be some time limits on that course.

We do oppose a technique of the Crown, in effect, not raising these issues and then barely arguing them and then having a sort of reserve parachute back to the Court of Criminal Appeal so that if that this Court does find in my client’s favour, they are able to, in effect, run a full argument again on the facts. So, that is my respectful suggestion as to how your Honours might approach the matter. If your Honours were minded to do that, your Honours have my assurance that I personally have the time available to do that and that I will deal with that task.

GAGELER ACJ:   Mr Reynolds, you made no procedural complaint. You had the pages available to you to put your argument on the proviso in writing before today.
MR REYNOLDS:   We have responded within the limits of the page limits on reply but, as your Honour appreciates, that is a very small bed of Procrustes within which to fit a review of the whole of the evidence at the trial.
GAGELER ACJ:   Your time might, for the moment, best be spent in strict reply, and we will consider the course that we will take in relation to the proviso once you have done that.
MR REYNOLDS:   Thank you, your Honour. Can I deal with a few points that my learned friend finished on. I am happy for my learned friend to prompt me to the contrary but, as I understood, she submitted that the Court of Criminal Appeal found that the probative value of the relevant evidence was “minimal”. Now, my note is that at paragraphs 549 and 552, the relevant word that is used is “limited”, which, of course, has a measure of opacity about it, in the sense that all evidence is limited in its probative value.
The Crown, having opposed special leave being granted to review the actual exercise of discretion, now that our appeal is confined to the pure question of law, now embraces the proposition that it will only be in unusual or exceptional circumstances that this discretion would be exercised, adverse to an accused. If that is the case, that particular principle is not one which was applied by the court below and would open up an argument that the failure to find in the court below that there were highly exceptional circumstances opens up a line of obvious attack on the exercise of the discretion below.

Just finishing with some things my learned friend finished off on. My learned friend, with respect, straw‑manned my argument about an unfettered right to adduce evidence in one’s defence. That submission was made on the assumption that the evidence was both relevant and admissible. There is a requirement of admissibility. My learned friend then sought to gainsay my submission by pointing to limitations in the Evidence Act on admissibility. The answer is, of course, that my submission assumes that the Evidence Act requirements as to admissibility are complied with or should be relevant to the common law and other statutory requirements. So, that submission, with respect, goes nowhere.

So far as the decisions in Victoria are concerned, we submit that the excerpts and summary in paragraph 4 of our submission are not inappropriate. In particular, my learned friend did not deal with the observation in Hartwick, which we quote there, where three judges of the Court of Appeal refer to the discretion as something which – or referred to, “may perhaps be excluded”. The other thing is that the only other decisions that are before 1995 are dealt with in our synopsis at paragraph 4, which refers to R v Gibb and McKenzie there, which says that circumstances:

an exercise of discretion will necessarily be rare.

The facts in Darrington were very unusual, and the circumstances of Darrington were very different – a very long way from a full‑throated endorsement of a particular discretion discussed in R v Darrington.
Moving to the submissions that – sorry, two other things before I get to that. The first is that I said to your Honour the Acting Chief Justice that I would give your Honours a reference to a case about raising doubt on probative value. The case that is hugely referred to is a decision of the Victorian Court of Appeal, which is Green v The Queen [2015] VSCA 279, and the particular paragraph is paragraph 34, about raising a doubt on probative value.

The other thing that I think I said I would give your Honours, when I was talking about the obverse of the evaluation of probative value and prejudicial effect – as I recall, I said I would give your Honours a reference on that. The 13th edition of Cross on Evidence, the Australian edition, at page 463, cites an article by Justice Basten, and the quote endorsed by Mr Heydon is to the following effect – from Justice Basten, that is, extra‑curially:

Prejudicial effect is, in one sense, the opposite of probative value: it refers to the risk that the evidence will be assessed by irrational or non‑rational processes.

My learned friend does not have that, so I will let her see that. Now, going, as it were, back to the top of what my learned friend had to say in response to my submissions. As your Honours know very well, I have set out about five key arguments, all or most of which invite an argument about express ouster by the statute – and just pausing there, I do not understand that argument to have been put. Secondly, we invite an argument based upon a necessary intendment. That is, when one looks at the terms of the provisions of the Evidence Act, one may gleam that the legislature necessarily intended to oust these particular propositions that I have put before your Honours today and in our submissions.
The submissions that have been put in response are difficult to deal with, not, I submit, because of their inherent force, but because an argument of that kind – that is, one based on necessary intendment – requires, necessarily, a full articulation of the logic of how the argument works. I do not mean this disparagingly of my learned friend, but to say, in effect, what about this section, in substance, is not a fully articulated argument which says or avers without ellipsis how precisely it is that these particular five arguments that I have put have been ousted by reason of the necessary intendment of the legislature.

It is kind of, well, what do you say about that section, to which my response is, well, in effect, what is it precisely that is put against the arguments that I have put by way of necessary intendment, as it were, filling out the process of logic involved in that?

Now, the other thing about the argument – and I will be coming to the sections that – or the main ones that are put against me in a moment. Many of these arguments, perhaps most, depend upon an assumption that the words used in this Act are always used consistently, and we have said in our submissions, in our reply, that that is a fairly light presumption and that when your Honours review the Act at your leisure, that your Honours will form the view that it is tolerably clear that words are being used in this Act in different sections from time to time.

One more likely analysis – I submit, far more likely analysis of the sections to which my learned friend took your Honours – is that, to be blunt, the legislature never adverted to any of these issues, whether we are talking about the precise issue, the narrow issue that is before your Honours, but also these five propositions that I have put. It is their failure – and, I submit, manifest failure – to advert to any real extent to these problems is what makes it difficult to use these sections so as to try and indicate some kind of either deliberate choice to exclude the operation of either the principles that I rely upon or my construction of the section.

The truth is, I submit, that it is clear that there was no real animadversion at all to these things. If I am right in putting that to your Honours, and I respectfully submit that I am, where, I ask rhetorically, does it get the Crown to point to sections which, on one view, with a fleeting look, might, to some extent, not sit wholly comfortably with some of the things that I have said in support of some of the propositions that I have put. And then, is that what the argument comes down to, I ask.

These are the sorts of issues which – and your Honours have been taken through the case law – where, going back to the proposition in Cornwell, one would very much expect that if these principles were going to be ousted, one would not be trying to read the tea leaves from what is possibly implicit in some of the words of some sections. But one would have found manifest in things like the second reading speeches, the explanatory memoranda, and these various Law Reform Commission reports, some adverting to these problems, and, again, some deliberate intention to deal with them.

The bottom line is, I submit, that one can not really garner much at all from these references to which my learned friend has taken your Honours to because these were things – that is, those things we have been discussing today – which no one associated with the drafting of this Act was, I submit it is clear, really thinking about at all. It is also clear – and I do not say this critically; I will come to that caveat in a moment – but the draftsmen or the Law Reform Commission or whichever drafter one wants to posit, did not – or they did not acquaint themselves fully with the prior relevant law, or at least all of it, on the issues that we are discussing.

I said there was a caveat. By that I mean it is a very difficult thing when one – or it must be a very difficult thing to draft something like an Evidence Act, because it abuts at every turn things or propositions like those that we are dealing with that are not necessarily what one might call core aspects of the law of evidence that are discussed in courses on evidence and the like but, rather, are matters that are known within the profession and are taken within the profession to be accepted ways of proceeding.

Your Honours know the phrase – I do not have it exactly – but the substance of it is that the saw – s‑a‑w – that if one is looking for whether something was a fraud or a stuff up, then it is more likely to be a stuff up. Now, I am not talking about fraud here but my point, extrapolating from that, is if one is looking at to whether or not these were changes made by a necessary intendment or without realising what they were doing, it is the latter option that your Honours will think is applicable, rather than the former.

The other thing about that aspect of things is that, except a little bit at the end, my learned friend did not actually formulate her attack on my propositions in terms of any precise submission about exactly how these propositions have been ousted by the necessary intendment of the legislation. And I am coming to these sections in a moment, but the difficulty is that I am like Odysseus in the underworld trying to grab the ghosts. I just cannot quite identify exactly how the argument is put. Sure, I can identify the sections – and I will come to those in a moment – but I need to identify that I am not able or have not been able fully to understand exactly how it is put.

The other thing is that this Evidence Act may have some fans, although I must say I have not met many, but it has certainly been said of it that it is not among the most beautifully crafted pieces of legislation that have ever hit the statute book. Your Honours will recall that for two of the more prominent scholars in the area of evidence, formers Justices Wells and Heydon were very critical of the drafting of this Act. There are all sorts of difficulties with it and those difficulties we seek to place as obstacles, in the way of my learned friend’s argument, because the plain fact is that this Act just is not very clear and is not very well‑drafted on a lot of things. So, that makes an argument of the kind my learned friend is putting, difficult. Would your Honours pardon me for a moment?

STEWARD J: I think the most direct answer to your section 9 point was that she disagreed with you about what the common law was, and so she says, because there is a discretion, albeit rarely exercised, there is nothing inconsistent with that common law proposition and section 135. I think that is how she was putting it.
MR REYNOLDS:   Your Honour, so far as that is put, I would be repeating what I put earlier, but going to paragraph 3 – and your Honours will recall that I did say some of these are dicta, although some of them are seriously considered, I also said – not all of these are ratio. However, if one looks down, as it were, to the end of 1995, I submit that it is tolerably clear that that was the law, and really it is only the Darrington Case that is the issue.
STEWARD J: Well, that is what we will have to sought out, but I think, in terms of joining issue, her response to you is, I do not agree with your common law proposition. And that is where the fight will be. That will be what Montgomery called the killing field, in this case.
MR REYNOLDS:   Yes. But let it be assumed against me that my learned friend is right to this extent, that there was – to try and put it neutrally and accurately – a measure of controversy still left in that area. That, your Honours may think, is a fair appraisal of the position.
GORDON J:   Another way of putting it might be to say that, having regard to the terms of section 136 and the other provisions we were taken to by the Director that, in a sense, it is apparent, consistent with section 9, that the common law was to be replaced, whatever it was, and that may be another way of looking at the way in which the Director’s submissions were put against you.
MR REYNOLDS:   It may also link up what your Honour the Acting Chief Justice put to me about when you adjudge the common law as well, but I submit that it was tolerably clear what the law was, and certainly clear enough, and certainly – if this be the case – controversial enough to require going back to Cornwell – paragraph 6 of our synopsis – that if the legislature is truly meaning to deal with this problem, then they would not leave it hanging out there unresolved; they would identify it and direct themselves to it. So, I submit that even if it be the case that one accepts there was still a measure of controversy, these submissions are still available, which we have put. But I have not sought to down – well, I have owned up to the authority of Darrington, so far as it is, and sought to address it.
So far as the sections my learned friend mentioned, I want to start with a section your Honour Justice Gleeson raised with me, namely section 55 and also section 56 – and your Honours heard the answer I gave as to what proceeding means. But the Director has really upped the ante here, in terms of the argument, because I have already submitted that there are a lot of important principles which are sought to be ousted by the Director’s construction.

The construction that is put on sections 55 and 56 by the Crown is to accept that these two provisions are revolutionary. Revolutionary because it is put against me that this Act fundamentally changes the law of the admissibility of evidence by altering the test of relevance, at least in a criminal trial – or, more particularly, a joint criminal trial – so that if there is a multi‑party, multi‑defendant prosecution, as long as a piece of evidence is relevant to one aspect of one of those defendant’s cases, or the Crown’s case against any one of them – take the Milperra massacre case – then it is in as relevant evidence in the proceeding, unless there is either an exclusionary rule or, as I understand it, a discretionary exclusion.

Now, that is a very big proposition, I submit, and there is not, from what we have seen, any indication – picking up Cornwell – of the Law Reform Commission or the legislature in the second reading speech or explanatory memorandum intending that that enormously important change had been made by sections 55 and 56. Then, having to face up to the inevitable problem with that, my learned friend said something like, but there would be some kind of limit on that evidence in relation to particular defendants. What is the limit?

GAGELER ACJ:   I think she pointed to particular sections that you said you were going to address.
MR REYNOLDS:   I am coming to them. Well, your Honours, they do not provide for limitation in that instance. If you take a Milperra massacre case and a piece of evidence is thrown up which suddenly becomes relevant in the whole of the proceedings because it is partly relevant to one defendant or whatever ‑ ‑ ‑
GAGELER ACJ:   Well, it is not necessarily relevant in the whole of the proceedings; it is admitted because it is relevant to a fact in issue.
MR REYNOLDS:   Quite.
GAGELER ACJ:   It does not mean that it is also relevant to other facts in issue. If it is, then there may be an exclusionary rule that could apply. That is her case.
MR REYNOLDS:   Not as I understand it, your Honour. It is not just exclusionary rules we are talking about here. If the evidence is admitted because it is relevant, I interpolate and understand no exclusionary rule has shunted it out of the evidence, it is in there, even though it is only relevant to one part of one case involving one defendant.
Now, that is not how criminal trials have been conducted. That is a very major change to the law that the evidence is only admissible, as all these cases we have referred to in our outline, written post‑Evidence Act, in paragraph 10, are based on that proposition. We do not have anything more from the Crown in this case, other than the assertion that, yes, sections 55 and 56 mean, if it is relevant to any case against any defendant, then it is in as relevant for all purposes. That is highly problematical.

If anyone conducting a criminal trial needs to know exactly what evidence is being admitted against them, and the common law provided a very simple mechanism for that – and that is, if you are the Crown, to get evidence in against a particular accused, you had to show it was admissible against them, that is relevant, and did not offend any rule or exclusion, and also gone over the discretionary probative value – et cetera – discretion. That is not what the Crown is saying here. The Crown is saying, once it is in, on any issue between any of these defendants, then it is in the case for whatever value it has evidentially, and everyone is just supposed to deal with that.

We are also told that – the approach that I put to your Honours about the admissibility of evidence in joint criminal trials was not known to the Crown. Now, I do not know what your Honours are meant to make of that, but I do say this in response; that I reiterate that no matter how much it may be that standards have slipped, and no matter how far it may be that people are no longer cognizant of these distinctions, what I put to your Honours is a correct statement of the way these trials have operated traditionally, and, according to Hoyle, as known by people that understand these things. I have no doubt from my enquiries that there are plenty of trials that are being conducted without regard to these principles. That may be in part because of the Evidence Act, or it may be for other reasons that I will not go into. That is what I wanted to say about sections 55 and 56.

My learned friend referred to section 20 of the Act with a submission, as I understood it, that this section assumes, from the terms of its drafting, that there may be more than one defendant in a criminal proceeding. That may well be, but that, in the light of what I have put to your Honours previously, I submit, is more likely to be that whoever is – or probably multiple people drafting this Act are just not adverting to all of these distinctions, and the importance of that use of language in dealing with that particular issue in that section. In short, that our responses are respectful, so what? It just does not take the argument very far.

There are some sections that I did want to take your Honours to as well in addition to that. One is section 137, and the point that I would make about that provision is, if your Honours look at the way that it is drafted – and this is the main section about discretionary exclusion as between a prosecutor and a defendant – it is rather revealing the way it is couched, because it talks about a criminal proceeding, singular, and it talks about evidence being excluded when it is adduced by the prosecutor:

if its probative value is outweighed by the danger of unfair prejudice to the defendant.

An interesting use of the definite article because it necessarily assumes, we would say, that this is, as I put to your Honours earlier, a joust between “only”, on the one hand, a prosecutor, and a single defendant within a particular proceeding. Now, of course, 135 operates more generally than 137 but, so far as there is adverting to this particular issue in the contextual sections to 135, your Honours understand that we underline the word “the” which is used in contradistinction to the word “a” or the word “any”.
The other thing that I would like to touch on while we are on these sections is that the definition of “probative value”, which is in the dictionary – picking up sections 135 and 137 – talks about facts in issue. I think I took your Honours to page 383 of the Darrington decision, which states – if I can find it there – as I recall, there are no facts in issue between two defendants in a criminal proceeding.

I am just looking for that on the page, your Honours. I may have the wrong page. At any rate, whether that is the right page or not, that is the way criminal pleading works. You look to the facts in issue as between the defendant and the prosecutor. The other section I would like to refer to is section 141(1), which, particularly when it is taken with the definition of “case”, which is in the dictionary, we submit, looks to be based on an assumption that there is only one case and only one proceeding against any one defendant.

So, your Honours, at the end of the day, we are all, I respectfully submit, looking at an Act where you are just sort of scratching around, trying to work out what they were doing. The conclusion your Honours would come to, I submit, is that there is not any animadversion to the various issues before your Honours, or if there is, it is but fleeting and inconsistent, and that – going back to the fundamental propositions that I have put in my submissions – one can list all of the sections referred to by the Crown and whatever argument we are to take, or I am to take as read, that is as yet unarticulated, and there is still – and this is not disputed – an express ouster of these propositions, albeit an ouster by a necessary intendment.

If the Court pleases, those are my submissions.

GAGELER ACJ: Thank you, Mr Reynolds. The Court will reserve on the arguments presented on the ground of appeal. If the Court considers that further submissions are required on the application of the proviso, the parties will be notified, and an appropriate timetable will be set for those submissions.
The Court will now adjourn until 10.00 am tomorrow.

AT 4.13 PM THE MATTER WAS ADJOURNED