KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
VAN DUNG NGUYEN APPELLANT
AND
THE QUEEN RESPONDENT
Nguyen v The Queen
[2020] HCA 23
Date of Hearing: 17 March 2020 Date of Judgment: 30 June 2020
D15/2019
ORDER
1.Appeal allowed.
2.Set aside the answer given on 29 May 2019 by the Full Court of the Supreme Court of the Northern Territory to Question 2 of the questions referred to that Court and in lieu thereof order that the answer to that question be "Yes".
On appeal from the Supreme Court of the Northern Territory
Representation
M L Abbott QC with C Jacobi and A E Abayasekara for the appellant (instructed by Northern Territory Legal Aid Commission)
D J Morters SC with N M Loudon for the respondent (instructed by Director of Public Prosecutions (NT))
North Australian Aboriginal Justice Agency appearing as amicus curiae, limited to its written submissions
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Nguyen v The Queen
Evidence – Criminal trial – Mixed statements – Where appellant interviewed by police prior to being charged – Where appellant made inculpatory and exculpatory statements during interview ("mixed statements") – Where recorded interview relevant and admissible – Where recorded interview not tendered by prosecution at trial – Whether prosecution's obligation to put case fully and fairly requires tender of records of interview containing mixed statements.
Words and phrases – "admissibility of mixed statements", "admissions", "all available, cogent and admissible evidence", "duty of fairness", "ethical practice", "fair trial", "fully and fairly", "inculpatory and exculpatory statements", "miscarriage of justice", "mixed record of interview", "mixed statement", "obligation to tender", "prosecutorial discretion", "prosecutorial duty", "record of interview", "rule of practice", "speculation by the jury", "tactical decision".
KIEFEL CJ, BELL, GAGELER, KEANE AND GORDON JJ. The appellant was charged on indictment with offences against the Criminal Code (NT) and stood trial before a jury in the Supreme Court of the Northern Territory. The appellant had been interviewed by the police about the offences in question prior to being charged. The interview was recorded electronically.
The recorded interview contained statements by the appellant in the nature of admissions together with exculpatory statements. The appellant offered an explanation for his conduct which could be taken to be a claim of self-defence. Records of this kind, which contain both inculpatory and exculpatory statements, are commonly called "mixed statements"[1].
[1]Malek (ed), Phipson on Evidence, 19th ed (2018) at [36-33].
The recorded interview was relevant and admissible. The prosecution did not tender the recorded interview as part of the Crown case, although it was not suggested that the statements made by the appellant were demonstrably untrue or unreliable. The essential reason for the refusal to tender the statements into evidence was that they would not assist the Crown case.
The appellant did not give evidence at…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Nguyen v The Queen [2020] HCA 23
Case
[2020] HCA 23
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, Mr. Nguyen, against a decision of the Full Court of the Supreme Court of the Northern Territory. The central dispute concerned the prosecution's obligation to tender a recorded police interview with the appellant, which contained both inculpatory and exculpatory statements, often referred to as "mixed statements." The appellant had been charged with unlawfully causing serious harm and aggravated assault.
The legal issue before the High Court was whether the prosecution's duty to present its case fully and fairly extended to tendering a recorded interview containing mixed statements made by an accused. The appellant argued that such a tender was ordinarily required unless there were good reasons not to do so, while the prosecution's discretion in such matters was questioned.
The High Court reasoned that a prosecutor's duty of fairness in a criminal trial requires the presentation of all available, cogent, and admissible evidence. The Court held that a prosecutor's decision not to tender a mixed record of interview, when that decision was tactical and disadvantaged the accused, did not accord with the prosecutorial obligation to present the Crown case fully and fairly. Such a decision could force an accused into an unfair choice between giving evidence or risking adverse speculation by the jury. The Court noted that professional practice in New South Wales and Victoria had long recognised this obligation.
Consequently, the High Court allowed the appeal, set aside the answer given by the Full Court of the Supreme Court of the Northern Territory to a specific question, and ordered that the answer to that question be "Yes," affirming that the prosecution ought to tender an accused's mixed record of interview unless there were proper grounds for not doing so.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the answer given on 29 May 2019 by the Full Court of the Supreme Court of the Northern Territory to Question 2 of the questions referred to that Court and in lieu thereof order that the answer to that question be "Yes".
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The principal issue concerned the discretion of a prosecutor with respect to the tender of evidence. More particularly the question for the Full Court was whether the prosecution was obliged to tender the recorded interview containing the mixed statements. The Court answered that question in the negative[3]. The appellant contends that, ordinarily speaking, the prosecution's obligation of fairness in the conduct of a trial would require its tender unless there were good reasons not to do so.[3]R v Nguyen (2019) 345 FLR 40 at 46 [24] per Kelly and Barr JJ, 54 [56] per Blokland J.The evidence and the interview The appellant was charged with one count of unlawfully causing serious harm to another and one count of assault aggravated by the use of an offensive weapon[4]. He pleaded not guilty to both counts. The Crown case on count 1 was that he either threw a bottle of beer at the victim or hit the victim on the head with it, causing serious harm; its case on count 2 was that he threw a bottle of beer at a second victim.[4]Criminal Code (NT), s 188(1) and (2)(m). The evidence from Crown witnesses was that the appellant and the victims were at a party with others in a house where alcohol was consumed. The first victim and the appellant had an exchange of words with raised voices when the appellant did not follow the rules of a singing game and refused the victim's requests to do so. One witness said they afterwards shook hands. After the game the appellant and the first victim were outside. The victim said that the appellant followed him outside, approached him with something in his hand and hit him on the top of his head. A witness said that he heard one of the group yell out that there was fighting outside; another heard the same person say that the appellant and the first victim were fighting. The person who had yelled out said that he saw, through a window of the house, the appellant hit someone with a bottle and that person fall to the ground. The witnesses saw the victim enter the house bleeding from his head injuries. The second victim was said to have been one of two people who ran after the appellant. The appellant then threw a bottle of beer at him. The appellant was administered a special caution prior to his interview, which was conducted with the assistance of an interpreter. The appellant was asked to explain the caution in his own words. He said: "Whatever you ask and whatever I answer will be taken as evidence in the court." In the interview the appellant admitted throwing the bottles but said, in effect, that he did so in self‑defence. He said that while he was at the party singing the first victim became angry towards him. They exchanged words. Five of those present went outside to smoke; three showed anger towards him and the appellant thought they wanted to hit him. Two of them blocked the door to the house. The appellant took two bottles of beer and threatened to throw them if they hit him. The first victim moved forward. The appellant said he had no choice but to throw the bottle of beer at him for otherwise he would have been hit. When he threw the bottle, he was at a distance of two to three metres from the victim, who was struck on the head. The appellant then ran outside to the road. When others followed he threw the other bottle at them as a warning.The proceedings below
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, KEANE AND GORDON JJ
(dissent)
NETTLE J
EDELMAN J
A prosecutor acting in accordance with the responsibilities of their office is not to be expected to be detached or disinterested in the trial process[61]. A prosecutor is to be expected to act to high professional standards and therefore to be concerned about the presentation of evidence to the jury. It is to be expected that some forensic decisions may need to be made. It is not to be expected that they will be tactical decisions which advance the Crown case and disadvantage the accused. In Ziems[62], Fullagar J observed that in that case the object of not calling a vital witness could only have been to deny the other party the ability to cross-examine him. Whilst the creation of a tactical advantage might be permissible in civil cases, in criminal cases it may not accord with traditional notions of a prosecutor's function, his Honour said. In Whitehorn[63], Deane J said that the observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations. It will be obvious that a decision by a prosecutor to refuse to tender a mixed statement so that the accused is forced to give evidence falls into this category.[61]Whitehorn v The Queen (1983) 152 CLR 657 at 675.[62]Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 294. [63]Whitehorn v The Queen (1983) 152 CLR 657 at 663-664.Conclusion and orders The recorded interview of the appellant provided his detailed account of what occurred. He was challenged a number of times by the interviewing police officer but his account remained consistent. It was not suggested that his account could be described as demonstrably false because it differed from the account of others. It provided the foundation for a claim to self-defence and the basis for questioning Crown witnesses by defence counsel. It is evident that the appellant believed that what he was to say in the interview would be placed before the court[64]. The decision not to adduce it was admittedly a tactical one, to favour the Crown. It did not accord with the prosecutorial obligation respecting the presentation of the Crown case and disadvantaged the appellant. [64]See above at [9]. There should be orders allowing the appeal. The answer to the second question referred to the Full Court should be set aside. That question should be answered: "Yes". I have had the advantage of reading in draft the reasons for judgment of the plurality, and I agree with their Honours that the Crown's obligation to put its case both fully and fairly before the jury means that the Crown ought to tender an accused's mixed record of interview unless there are proper grounds for not doing so[65]. As professional practice in New South Wales and Victoria has long recognised[66], a prosecutor's failure to adduce such admissible evidence of an accused's response when confronted with allegations of criminality is apt to present an unfair choice to the accused between electing to give or tender such evidence and risking adverse speculation by the jury.[65]R v Soma (2003) 212 CLR 299 at 309‑310 [31] per Gleeson CJ, Gummow, Kirby and Hayne JJ; Mahmood v Western Australia (2008) 232 CLR 397 at 408 [39] per Hayne J.[66]R v Keevers (unreported, Court of Criminal Appeal of New South Wales, 26 July 1994) at 7‑8 per Hunt CJ at CL (Carruthers and Bruce JJ agreeing); R v Su [1997] 1 VR 1 at 64 per Winneke P, Hayne JA and Southwell A‑JA; R v Rymer (2005) 156 A Crim R 84 at 90 [33] per Grove J (Barr and Latham JJ agreeing at 100 [92], [93]); R v Rudd (2009) 23 VR 444 at 457‑458 [54]‑[57] per Redlich JA (Maxwell P and Vickery A-JA agreeing at 445 [1], 465 [93]).