MR M.L. ABBOTT, QC: If the Court pleases, I appear with my learned friends, MR C. JACOBI and MR A.E. ABAYASEKARA, for the appellant, Mr Nguyen. (instructed by Northern Territory Legal Aid Commission)

MR I.L. READ, SC: If your Honours please, I appear for the appellant, Singh, with my learned friend, MR A.E. ABAYASEKARA. (instructed by Northern Territory Legal Aid Commission)

MR D.J. MORTERS, SC: If the Court pleases, I appear for the respondent in both matters with my learned friend, MS N.M. LOUDON. (instructed by Director of Public Prosecutions (NT))

KIEFEL CJ: Yes, Mr Abbott.

MR ABBOTT: If the Court pleases, we have provided an outline of oral argument limited to three pages, but we also provided copies of four cases that I wish to briefly refer to in the course of my submissions. I will not go to them now. Could I deal first with paragraph 1 of our outline of oral argument which we have called “The Narrow Issue”.

The appellant, Mr Nguyen, says that the question posed to the Court of Appeal and which is the question and the only question on appeal to this Court, namely, is the Crown obliged to tender the record of interview, should be answered yes, but as we identify in paragraph 1 of our outline of oral argument, it can be answered on what we call a narrow issue, on the narrow basis, depending on this Court’s view of the issues in this case and what issues this case presents.

We, however, put the argument on both footings and on the narrow basis we contend that the videotaped record of interview with Mr Nguyen must be tendered on his retrial, it having been tendered on his first trial. We say this must be done to ensure that Mr Nguyen receives a fair trial in circumstances where the only reason given for not tendering the videotaped record of interview was said to be tactical.

It is our submission that tactical reasons could never form a proper basis for the exercise of the prosecutorial discretion not to lead the record of interview and, at worst for the appellant, we say that if tactical reasons are not accepted as the reasons, then in fact this is a case where no reasons for not tendering the videotaped record of interview have been given. On the narrow issue we say that the answer to the question must be yes in this case.

That summary, very brief summary, in our submission puts Mr Nguyen’s case apart from many others, perhaps apart from the general run of cases, and perhaps for Mr Singh’s case - where no reason for the prosecution not tendering the record of interview was given - Mr Singh also is not facing a retrial, as is the case with Mr Nguyen.

In paragraph 2 we deal with what we call “The Broad Issue”, which we couch in these terms:

the prosecution’s obligation to ensure a fair trial requires the tender by it of all admissible evidence, whether favourable or unfavourable –

we emphasise favourable:

to the accused. That obligation –

we accept:

is subject to there being a proper reason -

I will deal with the issue of proper reason much later in my submissions, when I come perhaps to the last paragraph of this outline of oral argument. I accept that I need to go and talk about what proper reasons - or reasons are, but we say that the principles for which we are going to be contending in the course of our submissions can be stated at a more general level of abstraction, and with wider and perhaps more general application.

In our submission, those principles which we will be endeavouring to identify lead to the conclusion that the answer to the question posed to this Court, is the Crown obliged to tender records of interview, is yes, ordinarily, unless there is proper reason and that that answer would result in the tender, in this case, in any retrial of Mr Nguyen, of the record of interview. In other cases, even those cases which do not have the unique features of Mr Nguyen’s case, we say the rule should be that that would ordinarily require a mixed record of interview which must be tendered.

So may I, before I move to paragraph 3, just very briefly deal with the background to this appeal and the decision of the Full Court of the Supreme Court of the Northern Territory. I deal with that decision only insofar as the background in the decision is relevant for the propositions which we advance, but there are, in our submission, five important matters that I need to identify.

Firstly, the record of interview with Mr Nguyen was electronically recorded by way of a video recording which was in accordance with all the procedures in section 142 of the Police Administration Act on 19 July 2016. In other words, this is not something in which there is any doubt about what was said or how it was said or the way in which it was said.

The recording of that interview by video recording was shortly after the matter had been reported by the complainants, who had initially remained unwilling to report the matter and not co‑operating with the police. They eventually decided to report the matter. That may be significant if the court is of the view that the length of time between the offence having been committed, or alleged offence having been committed, and the time in which the interview takes place, is of some significance. It is not of significance in Mr Nguyen’s case, because the complainants initially did not co‑operate. Eventually, when they did, then the police got onto the matter and very quickly, shortly after that, they interviewed Mr Nguyen.

BELL J: Is the significance of the timing as between the alleged offence and the date of the interview because of any consideration of whether the accused’s account is fresh in the memory?

MR ABBOTT: No. It really goes to the consideration of reliability ‑ in that sense, it does. It goes to a sense of reliability. The longer it is, of course, the greater reason for supposing it might be unreliable, but more importantly perhaps common experience has shown in criminal matters, as your Honours will well know, that the longer things go on and the more access to a lawyer – and we often have cases of lawyers turning up with a client long after the matter and putting forward a version of the type that was rejected in the third category in Pearce’s Case.

BELL J: Yes, I understand.

EDELMAN J: You do not rely, then, upon a factor such as that mentioned in the Victorian case of Lee, which is the consideration of the first response that an accused gives to being confronted with an allegation?

MR ABBOTT: No, we do not, your Honour. We do not say that is the principle on which admissibility occurs in the case of a mixed record of interview. We are not seeking that as being the justification. It might be an additional reason, as well as the principle.

BELL J: The reason it is not a principal reason in the case of a mixed record of interview is, by definition, the mixed record of interview contains admissions.

MR ABBOTT: Yes.

BELL J: Is it your case that in that event the balance of the interview is admissible to, as it were, place the admissions in their proper context?

MR ABBOTT: Where the exculpatory material is inextricably mixed, as in this case, with the inculpatory material, it all goes in, in the cases in this Court and other jurisdictions.

BELL J: Does that bring it within section 81(2) of the Evidence (National Uniform Legislation) Act?

MR ABBOTT: Your Honour is correct in that. The second matter of the five I want to mention – the appellant was tried before a jury. The interview ‑ in his trial, that interview was tendered by the Crown, played to the jury in the first trial. That trial resulted in the appellant not giving evidence but standing mute and relying on what he had said to the police when interviewed, and it also resulted in a hung jury. The judgment of Justice Kelly in the core appeal book at page 11 sets out the course of the events. The record of interview in his trial was admissible and, presumably, deemed not unreliable, and we say that was the situation at his first trial and we say absolutely nothing has changed at present.

Thirdly, and perhaps most importantly, a decision was taken by the prosecution prior to the retrial proceeding that the record of interview would not be tendered on the retrial by the prosecution as part of their case. That decision was taken for what was described to the court at the time as being for tactical reasons, but in terms which are relevant to this appeal we would describe the approach taken by the prosecution as an approach which was designed to alter the forensic nature of the contest between the State and the citizen, namely, to effectively require the appellant, if he wanted to advance any defence to the charge, to no longer remain mute but to get into the witness box, give evidence, and thereby give up his right to remain silent if he was to make any defence afforded by the law of the Northern Territory, namely, self‑defence.

If that did not occur, we ask the Court to proceed on the basis that it is clear that no defence of self‑defence would be raised on the prosecution case, and that is to be seen in the judgment of Justice Kelly at page 11 of the core appeal book. All these aspects are set out in Justice Kelly’s decision.

Fourthly, the decision of the prosecution not to lead the mixed record of interview at the retrial led to an application for a stay on the basis of abuse of process and ultimately of the referral of two questions to the Full Court of the Supreme Court of the Northern Territory. The referral document is set out at pages 3 to 7 of the core appeal book and the Court has probably noticed that much of the referral document appropriately enough has been incorporated into the judgments of Justice Kelly and also to Justice Blokland.

Fifthly, as to the first question on the referral, namely whether the electronically recorded record of interview was admissible, this question was answered by all judges in the affirmative. So the question of admissibility is not raised on this appeal. They answered that on the basis that the electronic record of interview contained both inculpatory and exculpatory statements, but they were mixed in the sense of not just – not just mixed, but inextricably entwined and admissible pursuant, as your Honour Justice Bell has said, to section 81(2) of the Uniform Evidence Act.

They said that the exculpatory statements were so inextricably bound up with the inculpatory statements that they were admissible, and Justice Blokland at page 26 of the core appeal book, line 29, says:

The exculpatory parts are inextricably or intimately associated with the admissions.

That, in my submission, is a view also held by Justice Kelly, and Justice Barr, who agreed with Justice Kelly. So, as to the second question and the only question before this Court, whether the prosecution was obliged to tender the electronic record of interview at the proposed retrial, this was answered by all judges in the negative in the case of Nguyen. But it would appear from the decision in Singh that Justice Blokland would have answered this question in the affirmative, but that she was bound by the majority in Singh and where she had dissented from the ruling of the plurality.

The conclusion of the majority on this question is at page 15 of the core appeal book, paragraph 16, where Justice Kelly, speaking for herself, and Justice Barr who joined in, said:

In summary:
(a)There is no general rule or principle that the duty of fairness requires the prosecution to tender a record of interview with an accused simply because it contains admissible material.

The Court will see that the authorities that her Honour refers to there are Singh, the other appellant, Middleton, Callaghan, Assafiri v Horne and Barry v Police. No authority from this Court is cited for that proposition. We will be citing authorities from this Court against that proposition to support our answer to the second question.

Justice Blokland said this to similar effect - that is at page 30 at paragraph [44], and as I will take the Court through shortly, the plurality came to this conclusion by distinguishing what this Court had said in the High Court decisions of Soma and Mahmood. We respectfully say that if the answer was intended, as it must be, to apply to mixed records of interview when there is no reason given and no reason could be given, particularly in the case of the appellant, Nguyen, then, with respect, it is wrong.

It is wrong because the duty of the prosecutor ordinarily requires the prosecutor to tender all admissible evidence at trial unless there is good reason not to do so, and we say that the discretion of the prosecutor does not permit the prosecutor to pick and choose which witnesses and which evidence will be led in the Crown case just to give the prosecution the best chance of obtaining a conviction. We say that that applies to real evidence, to testimonial evidence, and to evidence in the form of an interview of the accused, which in this case was a mixed record of interviewing. May I now turn briefly to paragraphs 3 and 4 of our outline.

NETTLE J: Mr Abbott, just before you go, if it had been entirely exculpatory ‑ ‑ ‑

MR ABBOTT: Yes?

NETTLE J: ‑ ‑ ‑ what then?

MR ABBOTT: It would not be admissible under the Evidence Act (NT).

GAGELER J: But it would be with the consent of your client.

MR ABBOTT: Yes. There is an issue as to whether or not, also, under the Evidence Act (NT), section 81 - yes, I accept that.

NETTLE J: Covers the field, as it were.

MR ABBOTT: Yes, yes.

GAGELER J: You start with relevance, do you not? An exculpatory statement is relevant if it is the accused’s story, is it not?

MR ABBOTT: Yes, it is relevant. It is relevant if it is the accused’s story, yes.

GAGELER J: Then it is admissible if the accused chooses to waive the hearsay rule.

MR ABBOTT: If the accused chooses to waive the hearsay rule, yes, and the prosecution wanted to put it in, but it is admissible, the option of the prosecution, if it contains inculpatory statements.

GAGELER J: I do not see the reason for the distinction.

EDELMAN J: You do not say that ‑ you say that the prosecution is not obliged, on your case, to put in an entirely exculpatory statement.

MR ABBOTT: Yes I do, your Honour.

EDELMAN J: But the position is different where the statement is a mixed record, where putting in the inculpatory aspect requires the prosecution to put in the exculpatory statements as well.

MR ABBOTT: Yes.

NETTLE J: Is that solely because of 81(2) or for some other reason, that you draw that distinction?

MR ABBOTT: I draw that distinction because of section 81 and particularly 81(2).

NETTLE J: That is really a question of admissibility.

MR ABBOTT: Yes.

NETTLE J: As opposed to obligations to tender evidence, which is relevant to the matter in issue.

MR ABBOTT: Well, we would say that if it is admissible, once it is admissible ‑ ‑ ‑

NETTLE J: Yes, I follow.

MR ABBOTT: I will not complete that. Can I just briefly deal with the basis of the admissibility in this case? We have set it out in paragraphs 3 and 4 of our outline of oral argument. It is important, we say, to understand what is in the interview and why it was admissible when considering the obligation to tender it and the effect it would have on the retrial of Mr Nguyen.

As I have said, section 142 of the Police Administration Act regulates the manner in which an interview of a suspect is to be conducted. This complied with that section and being a mixed record of interview, the entirety of the record of interview came within sections 81(1) and 81(2) of the Uniform Evidence Act in the Northern Territory.

We say it is clearly a mixture of inculpatory and exculpatory statements. It was consistent with the defence of self‑defence. The appellant’s account was that he was inside the house and socialising with the victim and others, that there was a dispute over a trivial matter, he went outside and some or all of the persons who had been inside the house with him came outside, and he believed they came after him to hit him and, as a consequence, the appellant, in his record of interview, said that he threw two bottles of beer, at least one of which he threw at the alleged victim and which hit the alleged victim. The appellant, in his record of interview, said that if he had not done that they would have hit him.

If one reads the record of interview, and I do not suggest that I will take the Court to it in my oral submissions, but the officer who did the interview made him give his account sometimes on two occasions and sometimes on three occasions in respect of relevant aspects about the order in which people came out of the house, what happened inside the house, why he took the two bottles of beer and they were all relevant matters, of course, which impinge on the ultimate issue for the jury of his guilt or innocence.

We say that one can identify two reasons why the prior exculpatory statements are admissible and why they have a significant bearing on any retrial. First, obviously, these exculpatory statements in this interview are really part and parcel of the inculpatory statements and a plain reading of the record of interview would demonstrate that.

Secondly, we say that together with the inculpatory statements, the exculpatory statements constitute, as it were, a textual consideration in which one must read the inculpatory statements because what happened was that the exculpatory statements appear to have dictated the order of questioning and requestioning. In other words, the police officer was not happy with one answer with exculpatory and then went through the whole system all over again and they provide the setting in which the inculpatory statements were made.

We say that this is a case in which – and it was accepted by the court below that it would be obviously difficult if not impossible to separate out one or more of them and still preserve them in their relevant context. So, the context of the later questions and answers needs to be considered in the light of the earlier questions and answers because they obviously colour - what came first obviously colours what comes next. We say this was important because the criminal law of the Northern Territory provides both for an offence of assault and a defence, mainly self‑defence, and both were covered in the mixed record of interview.

May I then turn to paragraph 5 which is really the substance of our – part of the substance of our oral submissions, the right of a fair trial, the prosecutor’s duty to present the case fairly and to ensure a fair trial. I intend to start with – by briefly referencing the cases that I have handed up. I do not necessarily ask the Court to go to the cases that I have handed up but I do want to take the Court to some references to the elements of a criminal trial because I think it is important that we look at the prosecutorial discretion and the way it operates in the context of what is a criminal trial in Australia.

We say, baldly, that the prosecutor’s duty is to present the case fairly, and that in this case and ordinarily otherwise, the prosecutor’s obligation to tender a mixed record of interview is part of the accused’s right to a fair trial. The elements of what is a criminal trial were recently identified by Justices Hayne and your Honour Justice Bell in X7, a case which we have handed up, where your Honour Justice Bell and Justice Hayne discussed the characteristics of a criminal trial in Australia – and subsequently, by your Honour the Chief Justice, in Lee v New South Wales Crime Commission – and I will deal very briefly with these cases, but they are important.

Firstly in X7 (2013) 248 CLR 92, and I am reading from page 134, the reasons of Justices Hayne and your Honour Justice Bell. The heading is the “process of criminal justice” – I do not intend to read all of that, but merely to take the Court to paragraph 101, noting that from paragraph 97 and following, your Honours noted that the criminal trial process is both adversarial and accusatorial, and that there are certain fundamental features of a criminal trial that must be in existence before the trial is run according to Australian law. Your Honours noted these features at paragraphs 101 and also again at 117.

The features that I identified, your Honours having identified in those paragraphs, are the right to silence, the privilege against self‑incrimination, the fact that a defendant is not competent to give evidence for the prosecution, the fact that a person has the right to stand mute or remain silent at their trial, that a person cannot be forced to give evidence by the prosecution, and the particulars on which it is proposed to rely in proof of the allegations made must be given so that the charge is properly particularised. We say it is all those features, and at paragraph 117 of X7, Justice Hayne and your Honour Justice Bell said:

It follows that a person accused of an indictable Commonwealth offence may stand mute at his or her trial. The accused cannot be called to give evidence by the prosecution. The prosecution may not comment on the failure of the accused to give evidence.

BELL J: Accepting these features of the criminal trial, the determination by the prosecutor not to take advantage of an interview containing admissions as well as exculpatory statements by tendering it does not, on its face, trench on those features to which you have taken us. Really, your contention is to do with some notion of the standard of fairness to be expected of a prosecutor, is it not, as opposed to the features with which X7 was concerned with respect to the nature of the criminal trial?

MR ABBOTT: It is both. We are concerned with the features. We are concerned with the fundamental principles of the common law, which your Honour the Chief Justice described in Lee v New South Wales Crime Commission – I will come to that in a minute. But in the particular case we are talking about it is not a case of the prosecutor making his or her mind up as to withholding, I think your Honour describes as something for the defendant, or making a decision. In this case, the decision made by the prosecution is definitely against the defendant because ‑ ‑ ‑

BELL J: It was intended for tactical reasons, you say, to force the accused into the witness box.

MR ABBOTT: Yes, which we say is quite wrong.

BELL J: I understand your fairness argument. I am just not quite sure why those passages in X7 necessarily help you beyond the fact that one accepts that there may be fairness issues raised by the suggestion of an attempt to pressure an accused to give evidence.

MR ABBOTT: It is because of the accusatorial aspect ‑ not the adversarial aspect – of a criminal trial and the fact that the action by the prosecutor in the circumstances outlined in Mr Nguyen’s appeal would alter the position of the prosecution vis‑à‑vis the accused.

GORDON J: Is your proposition any higher than that the consequence of the conduct of the prosecutor means that there is a potential that the accused is forced to give evidence?

MR ABBOTT: It is that, but it goes higher than that as a matter of principle because, as your Honour the Chief Justice said in Lee v NSW – and I am reading from (2013) 251 CLR 196 at paragraph 176 :

I will continue to describe this principle – that the prosecution must discharge the onus of proof and cannot compel the accused to give evidence for it – as “the fundamental principle” of the common law ‑ ‑ ‑

KIEFEL CJ: Each of X7 and Lee involved attempts by the legislature to alter the system and the process. What you are really involved with here, to take up the questions put by Justice Bell, is the prospect that the process fails, it miscarries, which is something which takes place within the criminal trial process being conducted.

Now, what you are arguing for, it seems to me, is not so much that there be a rule in every case, an obligation in every case to tender a mixed record of interview, but that generally the prosecution is required to do so, and the reason that that is so is that fairness requires it and if fairness is not met there is a potential for justice to have miscarried.

MR ABBOTT: I argue for that but I also argue for the proposition that although the facts are far different in X7 and Lee v New South Wales Crime Commission, what the prosecutor is doing in the case of the appellant, Mr Nguyen, is fundamentally altering the position of the prosecution vis‑à‑vis Mr Nguyen.

BELL J: The difficulty with that, Mr Abbott, is it remains the choice for the accused as to whether or not he gives evidence. One can appreciate the forensic advantage to the accused in the circumstances of this case of his exculpatory account being before the jury in the form of the answers given in the interview. But by way of contrast with X7, we are not looking at an alteration to the system of criminal justice. One is looking, one would think, at the question of the fairness in the circumstances of the prosecutor’s decision not to tender the interview.

MR ABBOTT: Perhaps I am aiming too high, but it seems to me ‑ ‑ ‑

KIEFEL CJ: Perhaps you are making it too hard for yourself.

MR ABBOTT: Your Honour, I prefer to work from principles and, with respect, it seems to me the principles that this Court has laid down as to what constitutes a fair trial should thereby guide the conduct of the prosecutor.

KEANE J: Is that not the point? The point – you are looking for a positive obligation and it would seem that the source of the positive obligation is the duty of the prosecutor in relation to the ensuring of a fair trial.

MR ABBOTT: Yes. That is true, your Honour.

KEANE J: That is really what your attention is being directed to, I think.

MR ABBOTT: Well, just to deal with what Justice Bell said to me, we would, with respect, say that the notion that if the evidence can be given by the defendant that will sort of somehow cure unfairness is, with respect ‑ ‑ ‑

BELL J: Mr Abbott, I did not put that. What I raised with you was that the defendant retained his rights either to give evidence or not to give evidence, and in that sense there was not an alteration of the fundamental process of the adversarial and accusatorial criminal trial.

MR ABBOTT: Yes.

BELL J: None of that is to, as it were, not appreciate the argument that you put to the extent it goes to the exercise of the prosecutor’s discretion.

MR ABBOTT: Well, your Honour, I can only answer it by saying that consistently with what your Honour the Chief Justice talked about and what your Honour Justice Bell and Justice Hayne spoke about about a trial, criminal trial is both adversarial and accusatorial. The accusatorial aspect of the criminal trial process requires that the prosecution prove its case, that it do so without any assistance from the defendant, that the accused has the right to remain silent, to remain mute, and that the prosecution cannot call the defendant as a witness, et cetera, et cetera.

Now, all those aspects, in my respectful submission, mean that the onus always remains on the prosecution to put to tender all evidence which is relevant and, therefore, admissible.

KIEFEL CJ: At the outset of your argument you acknowledged that there may be proper reasons ‑ ‑ ‑

MR ABBOTT: Of course.

KIEFEL CJ: ‑ ‑ ‑ for it not to be tendered. So you are not talking about a positive obligation which has to be applied in every case. It necessarily depends on the circumstances and whether the tender would disfavour the accused in a particular case. Your point, as I understand it, is that the prosecutorial discretion is not absolute but must be guided by questions of fairness.

MR ABBOTT: Yes, and must be guided by the construct of what is a fair trial and what this Court has said about the indicia of a fair trial.

KIEFEL CJ: That is to say no more than we are talking about issues of fairness, is it not? We keep coming back to that.

MR ABBOTT: Yes, your Honour.

BELL J: Your point in respect of fairness is the notion of the obligation of the prosecutor to place before the jury all the evidence that bears materially on the determination of the issue, and you would say the record of interview answered that description in this case.

MR ABBOTT: Yes, I do, and I come back to what I have said about what is happening in this case, this particular case, and that is the alteration in the position of the prosecution vis‑à‑vis Mr Nguyen. In the first trial, we have the statement tendered by the prosecution on the basis it is admissible and relevant evidence. The decision is then taken without any explanation other than it is said to be “tactical”, whatever that means, that the prosecution will not tender it on the retrial.

We say that that consequent alteration in the position of the prosecution vis‑à‑vis Mr Nguyen, the appellant, is of some significance in determining in Mr Nguyen’s case but, as it were, ordinarily in other cases, whether or not it is appropriate and whether the prosecution should generally ‑ ‑ ‑

KEANE J: You say it negatives the possibility of a proper reason consistent with the fairness of the discharge of the prosecutor’s office of a good reason to refrain from tendering it.

MR ABBOTT: Yes, I do, your Honour.

BELL J: If one looks at the notion that the obligation is on the prosecutor to place before the jury all the material that bears relevantly on their determination, it is, in point of principle, a bit difficult to see the difference between a mixed record of interview and one that is wholly exculpatory.

MR ABBOTT: Except it comes down to the issue of admissibility but again ‑ ‑ ‑

NETTLE J: It is relevant and admissible and that is why you say there is an obligation to tender it in the absence of a good reason not to.

MR ABBOTT: Exactly, your Honour. Can I go then to paragraph 6, but before talking about the prosecutor’s duty to ensure a fair trial in more detail, can I just make a comment about the analysis of the decisions of intermediate courts? There are dozens of decisions of intermediate courts, most of which fill up the casebooks in this case. We take the position that a better way home for this Court to consider the matter is by statements of principle by this Court as a much better foundation for approaching the issues.

The many cases at the intermediate level demonstrate many conflicting views regarding the obligation to tender an admissible record of interview containing exculpatory statements. Quite frankly, I do not get much joy out of them and we say that some of those intermediate decisions are in conflict with some of the decisions of this Court and some of them have been dealt with or arrived at without consideration of some of the dicta from this Court and they seem to be mostly concerned with a separate question about what is a mixed record of interview and some of them have conflated the issue of what is a mixed record of interview with prosecutorial discretion to tender.

So, I will now deal with paragraph 6 of the outline. The prosecutor’s duty, as we say, in paragraph 6 has been said, as to the conduct of the case, to ensure that it is presented fully with the objective of ensuring that the jury is given the whole picture and not just material which assists the Crown case and we have referred to the language from Subramaniam and that has its origins, first, in the reasons of this Court in Richardson, the reference that we have given, and also in Whitehorn.

EDELMAN J: In these general propositions, are you ultimately seeking to deduce an approach that applies to mixed records of interviews that effectively matches the approach in Apostilides that is taken to calling of witnesses?

MR ABBOTT: Yes, I am, and I will also be saying that the approach to advance my argument is the approach of this Court in Soma and the decision of Justice Hayne in Mahmood. We say those two cases present guidance and a proper statement of principle for how prosecutors should deal with mixed ‑ ‑ ‑

EDELMAN J: Well, the point from Mahmood that you are referring to from Justice Haynes’ decision is just not to split up the video record of interview, but the broader point that I am putting to you about Apostilides is that the same general principles as to when, generally, a prosecutor must tender a video record of interview would be the same as when generally a prosecutor must call all of the witnesses in a case that are relevant to the determination of the issue.

MR ABBOTT: Well, your Honour, when I come to it, which is at paragraph 7, I will endeavour to convince your Honour that Justice Hayne is not just talking about the case where you split up the records of interview, but it is a more general proposition than that. Can I deal firstly with Richardson (1971) 131 CLR 106, it is case 21, and it is in Part C, volume 2 of the casebooks and it commences at page 658, where, in the middle of the page, and indeed all the page is important, but the passage starts at “Any discussion of the role of the Crown prosecutor” ‑ ‑ ‑

KIEFEL CJ: Which page of the report?

MR ABBOTT: Page 119 of the report, your Honour.

KIEFEL CJ: Thank you.

MR ABBOTT: Page 658 of the casebook. If your Honour looks at page 658 you will see the words, in the middle of the page, “Any discussion of the role” - I will not read that first part, I go straight to the line:

He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused.

I do not say that is the first time that has been said as a matter of principle, but it is certainly one of the statements that has been picked up in subsequent cases in this Court and, indeed, many other cases around Australia. A little further down the page, the Court said, and it is all the Court:

What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused.

We say that these references to fairness to the accused shape and confine what might otherwise be the unfettered discretion that your Honour Justice Bell has mentioned as a possibility. We say that one of the factors is the presentation of all admissible evidence to the jury, subject, of course, to the ultimate issue of reliability and any other factors where good reason can be shown.

We rely upon Richardson for what it says about fairness - that is, in two aspects: the duty of the prosecutor to be fair to the accused and the duty to ensure overall a fair trial. We say that the answer in relation to what we have said to be the narrow issue, and the sole question before the Court, we would say that in relation to the narrow issue, that is, Mr Nguyen’s particular case, the factors referred to in Richardson compel the tendering of the interview, and that there are no factors that would justify its exclusion. On the broad issue, and that is the broader conception of the issue, we say that ordinarily the mixed record of interview should be required to be tendered as a matter of fairness.

Following on from Richardson, but on the same issue, Justice Deane in Whitehorn (1983) 152 CLR 657, which is case number 23 - and Whitehorn is in Part C, volume 2 at page 668 – I am taking the Court to, in the volume it is page 674, in the Commonwealth Law Reports it is page 663, and it is the last paragraph beginning “Under the adversary system”. His Honour Justice Deane said:

Under the adversary system which operates in a criminal trial in this country, it is for the Crown and not the judge to determine what witnesses are called by the Crown. That is not to say that the Crown is entitled to adopt the approach that it will call only those witnesses whose evidence will assist in obtaining a conviction. Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.

We draw attention to the emphasis on the whole truth, which we say embodies the requirement to lead both favourable and unfavourable evidence – that is, favourable and unfavourable to the Crown case – and the reference that Justice Deane made to what he called the “procedures and standards”. We say that the specific reference to “procedures and standards” incorporates those aspects of a criminal trial which we have identified about the accused’s right to remain mute, have the Crown case proved against him, et cetera, et cetera.

The use of tactics, of course, is eschewed by Justice Deane over the page at 675, and at page 664 of the report, where his Honour in the first complete sentence, about halfway down the page, said:

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 -

which is exactly the case that happened with Mr Nguyen. In saying that, we say that is the – when you refer that back to the original passage, everything obviously needs to be done with the object of, to use Justice Deane’s words:

helping to ensure that the accused’s trial is a fair one -

which must surely be the overriding principle applicable to how decisions are to be made by the prosecution.

EDELMAN J: What do you say about the passage towards the bottom of the page in Whitehorn, that:

Among the considerations which may justify the Crown in refraining from leading evidence from a particular witness is that the evidence which he or she would give is plainly untruthful or unreliable.

MR ABBOTT: Yes. I say it is a perfectly correct statement.

EDELMAN J: That would apply equally to videorecords of interview that are mixed – in the sense that perhaps any admissions are relevant, but perhaps peripheral and the remainder might be thought to be matters that are untruthful or unreliable.

MR ABBOTT: Well, for example, if there was a mixed record of interview which was in direct conflict with what the CCTV of the incident disclosed, one could then ‑ ‑ ‑

EDELMAN J: Yes.

MR ABBOTT: A prosecutor could quite clearly come to the result that what the accused has said in a mixed record of interview was plainly untruthful or unreliable.

EDELMAN J: What about a demeanour assessment?

MR ABBOTT: I think that is more difficult, and I would like to take your Honour to what was said in Apostilides where the Court said – which is to be found in case number 18, book C, volume 2 at 558. In Apostilides, which I think is probably the paragraph your Honour Justice Edelman had in mind – 588, rather.

GORDON J: Sorry, is that the page of the report or the book?

MR ABBOTT: I am dealing with – it is the book page. It is page 576 of the Commonwealth Law Reports. It is page 588 of the book of authorities. It is up the top, where the Court said:

A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence.

We say that the reference to the overriding interests of justice bring us back to all those considerations I have mentioned about the basis of what is a criminal trial in Australia. By the way, I should also say on that topic, Justice Edelman, that the decision of Apostilides was preceded by a decision in the Victorian Full Court in Lucas, which is in our book of authorities, in book D, volume 2, at page 1091. The authorised report is [1973] VR 693 and we would refer the Court to page 705 of the Victorian Reports or page 1103 of the book at line 35, where two judges, Justice Newton and Acting Justice Norris, said this – it is a very short point but it is all of course important:

It is very well established that prosecuting counsel are ministers of justice . . . Consistently with these principles, it is the duty of prosecuting counsel not to try to shut out any evidence which the jury could reasonably regard as credible and which could be of importance to the accused’s case.

EDELMAN J: There is also the paragraph at 697, the final paragraph on the page.

MR ABBOTT: Yes, your Honour:

strong and satisfactory reasons . . . when the witness is clearly untruthful or unreliable -

Perhaps lastly I could refer to the decision in Kneebone, which is case No 37 in book D, volume 1. Kneebone (1999) 47 NSWLR 450 was a decision of the New South Wales Court of Criminal Appeal with Chief Justice Spigelman, Justice Greg James and Acting Justice Smart. At page 460, and our book page is 1051, under the heading “Ascertaining unreliability”, Justice Greg James gives a, I will not say a dissertation but some helpful comments about how to ascertain unreliability, referencing back to Apostilides, and he concludes by saying at line 50 on page 1051:

In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness’ account does not accord with some case theory which is attractive to the prosecutor.

All of this means, we say, that in the case of a record of interview – and this is in answer to your Honour Justice Edelman – that unreliability will stand to be assessed obviously by a combination of factors, including what is the objective evidence or the circumstances in which the answers in which the record of interview came to be given.

EDELMAN J: It is really a high degree of unreliability, not mere unreliability.

MR ABBOTT: Exactly, your Honour. Not mere unreliability, I agree with that. Indeed, I should also make the point that we are - in relation to unreliability it is used in so many ways and, indeed, in terms of unreliability we are – it is used in at least three senses. There is a difference – first of all, unreliability is used in the sense that the evidence is unreliable, such as the interests of justice do not require the prosecutor to tender it. That is one sense in which it is used.

The second sense is whether the evidence is inconsistent with the prosecution case as a whole once the trial goes on and, indeed, the prosecutor might then say to the jury that the evidence was unreliable. That is not unreliability in the sense of admissibility. That is unreliability in the sense of the way the cases eventually presented.

So we say that you have to be careful when you are talking about unreliability. We are talking about it in the sense of assessing the evidence so that the interests of justice do not require the prosecutor to tender it and using unreliability only in that sense and not in any other sense and some of the cases unfortunately stray from that definition.

By the way, Justice Deane in referring to tactical considerations and eschewing the use of tactics is merely, we say, with great respect, following the footsteps of Justice Fullagar in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at page 294 – it is one of the cases that we handed up to your Honours. In Ziems at page 294 his Honour said, of the facts in Ziems’ Case – and I am reading from just after the first third of the page:

So far as appears, the only possible object of not calling him –

that is, Sergeant Phillis:

was to place the appellant under the tactical disadvantage which resulted from inability to cross‑examine him. Such tactics are permissible in civil cases, but in criminal cases, in view of what is at stake, they may sometimes accord ill with the traditional notion of the functions of a prosecutor for the Crown.

We say Justice Deane was perhaps doing no more, I cannot say for sure, but perhaps doing no more than following on from what Justice Fullagar had said in Ziems’ Case. Justice Fullagar then goes on to offer or state his views to how doing something for tactical considerations does not sit with the duty of fairness owed by a prosecutor, but I will not read that out.

Can I then go to paragraph 6.2 of the outline where we deal with the tender of evidence generally. We set out something of what had been said by this Court and by intermediate courts about the tender of evidence generally as part of the trial in order for the prosecution to ensure that an accused trial is a fair one.

The starting point as to what evidence should be tendered by the prosecution really commences again with what Justice Deane said in Whitehorn in the passages that follow on from those that I have already referred to. In the casebook at page 675, his Honour said after the reference to “tactical considerations”, he said whether or not their names appear on the back of the indictment or information, that is an important statement whether or not – all witnesses whose testimony is necessary for the presentation of the whole picture to the extent that it can be presented by admissible and available evidence should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses such as that the interest of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point.

Of course, what was said there was not novel. Again, it finds its origin in passages of what Justice Fullagar said in Ziemsv Prothonotary case. And Ziems’ Case also refers back to authorities from the early 19th century, and we note that Richardson also quotes decisions from the English Court of Appeal and Kings Bench on this topic. I will not take the Court back to Ziems or Richardson.

But we do say that the notion of all witnesses whose testimony is necessary for the presentation of the whole picture finds further reflection in the decision of this Court in Dyers (2002) 210 CLR 285, and that is the decision in that case of Justices Gaudron and Hayne. It is in Part C, volume 1, at page 349. In Dyers at page 356, 357 in the Commonwealth Law Reports at page 292 to 293 – so from the bottom of page 356 in the casebook and 292 in the report, I read:

If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them.

Citing Ziems, Richardson and Whitehorn:

As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act “with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one”.

Citing Justice Deane in Whitehorn. And they go on to say:

That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person.

And we say the same applies to mixed records of interview.

GORDON J: Do you accept paragraph 12, the first few lines that follow it?

MR ABBOTT: I am sorry, your Honour?

GORDON J: Do you accept the first few lines of the next paragraph?

MR ABBOTT: Yes, your Honour, because that comes back to the notion of good reason, which I have always accepted from the start of my oral submissions, is a qualifier to the exercise of the discretion. But good reason is not just an inchoate concept. It is the concept of – the content of a good reason is determined by, we say, what this Court has said in these cases about what is a good reason and we say ‑ ‑ ‑

BELL J: There are two aspects to it that you have identified.

MR ABBOTT: Yes.

BELL J: One is demonstrable unreliability, as in your illustration of the CCTV camera giving the light of the account and the other is the Pearce situation of a plainly constructed ‑ ‑ ‑

MR ABBOTT: Or concocted.

BELL J: ‑ ‑ ‑ account.

MR ABBOTT: Yes. And, of course, that is not the exclusive list.

EDELMAN J: Well, the other examples like Justice Deane gives, where there are large numbers of witnesses saying exactly the same thing.

MR ABBOTT: Yes. You do not have to – yes. So we say in answer to what has been said, what may be said against me, what Justice Callinan said in Dyers at page 390 of the book, at page 326 of the report in Dyers, down the bottom of the page, he talked about material evidence, and he said:

A broad practical view of materiality should be taken. All the available admissible evidence which could reasonably influence a jury on the question of the guilt or otherwise of an accused is capable of answering the description “material”.

And we say that is another factor, if you like, which informs the content of what would not be a good reason. We say that that has a logical corollary in that it does not matter that the defendant can call that person as part of their case. We get back to the issue of the criminal trial about the accusatorial and adversarial aspects and the duty of the prosecution, with reference to those aspects of what is a criminal trial in this country.

GAGELER J: Is there a difference between material and relevant?

MR ABBOTT: We then get discussion of three contents: material, relevant, and admissible, and obviously something that is material would, I say, a fortiori, be admissible if it is ‑ ‑ ‑

GAGELER J: I am just trying to understand your adoption of his Honour’s description of what is material. I cannot see that it is different from what is relevant.

MR ABBOTT: No, I do not think it is either, your Honour.

NETTLE J: Well, it might be if it is the 50th witness to say the same thing that you would regard him as not being material.

MR ABBOTT: Yes, that might be so, your Honour, yes. The point that I am trying to make was picked up by the Queensland Court of Appeal in Manning. This is case number 41, which is in part D, volume 2 at page 1107, and in Manning, which is reported as the common form reference [2017] QCA 23. In Manning, the Queensland Court of Appeal said, at page 1118 of the book of cases, at the end of paragraph [27] ‑ all of paragraph [27] is important but I read only the last few lines where the court said:

Rather, fairness requires the prosecution to produce all of the material evidence which is available to it before putting the defendant to his election as to whether to give or call evidence.

That gets back to the accusatorial nature of the criminal trial:

Therefore, the fact that the defence was able to call the witness as a defence witness does not overcome the miscarriage of justice which occurs as a result of the Crown’s refusal to call a material witness.

We say that is an answer to what was said by the court below when Justice Kelly said that issues of fairness are overcome because the accused can give the evidence.

As to paragraph 6.3 of our outline of oral argument, I now turn to the two cases of Soma and Mahmood. In Soma, Chief Justice Gleeson, Justices Gummow, Kirby and Hayne, and the other from Mahmood with Justice Hayne. We say that the passages, which I am about to turn to, are directed at the necessity of the prosecution to tender all admissible evidence, and in particular video recordings of records of interview with the accused, whether mixed or entirely inculpatory.

And dealing with Soma, the passage that we set out at paragraph 6.3 of our outline, we say is the seminal passage, and I take the Court to Soma, which is in Part C, volume 2. Soma (2003) 212 CLR 299, the report starts at page 591 of our book of authorities, and I want to read from page 601, which is page 309 of the Commonwealth Law Reports. The Court said in Soma:

If the prosecution case was to be put fully and fairly, the prosecution had to adduce any admissible evidence of what the respondent had told police when interviewed about the accusation that had been made against him. To the extent to which those statements were admissible and incriminating, the prosecution, if it wished to rely on them at the respondent’s trial, was bound to put them in evidence before the respondent was called upon to decide the course he would follow at his trial,

Again, harking back to the adversarial and accusatorial aspects of a criminal trial:

To the extent that an otherwise incriminating statement contained exculpatory material, the prosecution, if it wished to rely on it at all, was bound to take the good with the bad and put it all before the jury. And consistent with what is said in Richardson v The Queen and Apostilides the prosecutor’s obligation to put the case fairly would, on its face, require the prosecutor to put the interview in evidence unless there were some positive reason for not doing so. The only reason proffered for not doing so in this case was, as the Court of Appeal rightly found, not sufficient.

Now, we say that is a plain statement of principle from this Court, from the plurality, Chief Justice Gleeson, Justices Gummow, Kirby and Hayne. The persons who did not form the plurality were Justice McHugh and Justice Callinan. That is a statement of principle and it is worth noting what the court below made of this statement, which it distinguished in Singh’s Case, Justice Kelly.

Singh’s Case is in our book of cases in part D, volume 2, starting at page 1257. Her Honour Justice Kelly, in my respectful submission, attempted unsuccessfully, or perhaps successfully in her Honour’s eyes, to distinguish Soma by saying this at the top of page 1293:

The issue in Soma was whether the Crown had impermissibly split its case ‑ ‑ ‑

KIEFEL CJ: I am sorry, what page number was that?

MR ABBOTT: Page 1293, your Honour.

GORDON J: Paragraph number please.

MR ABBOTT: It is paragraph [48].

GORDON J: Thank you.

MR ABBOTT: Her Honour started her dissertation on Soma at paragraph [46], but I need not take the Court – you will see that at paragraph [47] her Honour puts the passage that I have read from in Soma ‑ that is at page 1292 of our book – and then goes on to deal with that passage and says at page 1293, paragraph [48] of her judgment:

The issue in Soma was whether the Crown had impermissibly split its case and the remark must be seen in that context.

Well, it is a statement by the plurality of this Court and, in my submission, whilst obviously it needs to be seen in that context, you cannot downgrade it by saying that it only applies to cases where there has been a splitting of the Crown case – it is a statement of principle. Her Honour then goes on to say:

The reference to “the only reason proffered for [not tendering the record of interview . . . ]” being “not sufficient” is a reference to the fact that the Court of Appeal had concluded that “the prosecution had split its case without sufficient cause”.

Her Honour then says a lot more but the significance of what her Honour says at page 1293 is really that her Honour’s approach to Soma’s Case is that it should be confined – the passage that I read should be confined to cases where the Crown has split its case.

With respect, it would appear that Justice Kelly may have gained some support from this approach to Soma’s Case from what had been said by President McLure in Ritchie v The State of Western Australia. That is to be found in casebook D, volume 2, the same volume, at page 1200. The case begins at 1187 but at page 1200 at paragraph 43, President McLure specifically said this ‑ with which we disagree, with respect:

Soma is not authority for the proposition that the fair presentation of the prosecution case ordinarily requires the prosecution to adduce in evidence out of court statements of the accused containing both inculpatory and exculpatory material.

Then, comes the comment:

The issue in Soma concerns the general rule against the prosecution splitting its case.

Then, I will not read the rest of the paragraph but it seems to me that if Justice Kelly had read this that might have been the genesis for her exposition in distinguishing Soma’s Case in the court below. In our submission, the plurality in Soma’s Case in the statement that we rely upon was a reference to issues of principle associated with the tender of mixed records of interview. We read Soma as recapitulating those principles to which we have already taken the Court of the necessity in the interests of fairness for the prosecution to tender such records of interview.

The plurality were not, in our submission, confining what they said to cases only where the prosecution had split its case. In our submission, if the Court wishes to go further, the refutation of the explanation that in some way what was being said about the reasons proffered not being sufficient is a reference solely to the splitting issue. We would invite the Court to go to the decision of the Queensland Court of Appeal in R v Soma [2001] QCA 263. It is not in the books. I merely provide the reference. I do not intend to refer to it but the Court will read there why the prosecutor did not lead the evidence as part of the prosecution case because he did not believe it was admissible.

BELL J: You submit that the balance of paragraph 31 makes it plain that the statement is not confined.

MR ABBOTT: Yes, your Honour, and we note that Justice Kourakis, as he then was, in Barry, a case which I will come to shortly, did not refer to Soma’s Case at all when he was dealing with his decision in Barry which concerns mixed records of interview and I will deal with Barry’s Case when I turn to the next statement of principle which is Mahmood.

KIEFEL CJ: That might be a convenient time for the Court break, thank you.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

KIEFEL CJ: Yes, Mr Abbott.

MR ABBOTT: I am on page 3, the last page of our three‑page outline, paragraph 6.3. I now want to deal with the case of Mahmood (2008) 232 CLR 397, a case which your Honour Justice Edelman presumably remembers. The case is to be found in Part C, volume 2, at casebook page 524. The passage I wish to refer the Court to is at page 535 of the casebook, and over onto page 536, and at page 408 and 409 of the Commonwealth Law Reports.

Justice Hayne in his reasons, when dealing with a mixed record of interview, a re‑enactment in a case where only the video recording of the interview ‑ the first interview of the accused had been tendered, but not the video recording of the re‑enactment, said at page 535 of our casebook at paragraph 39, line 4:

But both the record of interview and the record of the re‑enactment contained assertions of fact that were contrary to the interests of the appellant. If one record was admissible, so too was the other.

Then as to whether both should be tendered, in two passages, Justice Hayne identifies that ordinarily they should be. The first passage is at paragraph 39 of the Commonwealth Law Report, and the remarks of Justice Hayne start, in our submission, tellingly with the words “In general” and, contrary to what I intend to come to, the way in which other cases have attempted to distinguish what Justice Hayne said, none of them seem to have had any regard to the fact that Justice Hayne was talking at paragraph 39 in general. He said:

In general, the prosecution should call “[a]ll available witnesses ... whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based”. If an accused has made inculpatory statements that are admissible in evidence, the prosecution should ordinarily lead evidence of all of those statements.

He cited as authority for that proposition what occurs in footnote 33 in Whitehorn, Ziems, Richardson, Apostilides, the cases that I have covered. He went on to say, about the statutory provisions, but then continued by saying:

But subject to that important consideration, it is not open to the prosecution to pick and choose between those statements, whether according to what is forensically convenient or on some other basis. And in leading evidence of out‑of‑court assertions which the prosecution alleges are inculpatory, the prosecution must take the out‑of‑court assertion as a whole; the prosecution “cannot select a fragment and say it bears out their case, and reject all the rest that makes against their case”.

Subsequently, or shortly thereafter, his Honour then deals with the decision of the Queensland Court of Appeal in Callaghan’s Case, the reference to which is at footnote 37 of the Commonwealth Law Reports, and what he refers to as:

three Western Australian cases in which Callaghan –

was considered. I will not read that out. But his dissertation about Callaghan continues over onto page 536 of our casebook, page 409 of the Commonwealth Law Reports, and concludes with the statement:

The decision in Callaghan does not establish that proposition and it is a proposition that is not consistent with the proper presentation of the prosecution case.

Then, importantly for us, follows this statement:

If there is admissible evidence available to the prosecution of out‑of‑court statements of the accused that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence.

Now, insofar as there have been other cases in intermediate courts which have attempted to confine that, or at least, in some, and I say this with respect, dismiss it, we say that is nothing more than his Honour Justice Hayne taking up what was said by the plurality in Soma’s Case. It is a statement of general principle not to be confined by some of the statements that have been made about it.

EDELMAN J: What do you say about Justice McLure’s statement in Ritchie?

MR ABBOTT: I am coming to that straightaway. That is the first case that deals with this. But Ritchie, Barry, and Singh are three cases I must turn to. What I say about it - I will be polite ‑ ‑ ‑

KIEFEL CJ: Of course you will be.

MR ABBOTT: Yes, your Honour. President McLure’s statement about Justice Hayne’s statement in Mahmood is firstly - and I am reading now from book D, volume 2, in Ritchie’s Case, at page 1200. Justice McLure said:

However, Hayne J in Mahmood v The State of Western Australia (2008) 232 CLR 397 made obiter observations on the prosecutor’s duty to tender a mixed statement as part of its case -

and then went on to say ‑ ‑ ‑

KIEFEL CJ: That is correct, is it not?

MR ABBOTT: That is correct, but then he went on to say, at the bottom of the page:

The reasons of the majority . . . are inconsistent with the existence of such a duty although they do not expressly address the subject.

That, in our respectful submission, is wrong.

KIEFEL CJ: Well, they do not address the subject. Is that your point?

MR ABBOTT: They are silent on the issue.

KIEFEL CJ: The majority were limited to the question of ‑ ‑ ‑

MR ABBOTT: Yes, and it is not inconsistent with the existence of the duty because they are silent on the issue. He then goes on to say, at page 1201 ‑ ‑ ‑

GORDON J: Sorry, where are we reading now?

MR ABBOTT: Page 1201 of casebook D, volume 2. The decision in Ritchie, at paragraph 46, he says:

The position of Hayne J ‑ ‑ ‑

KIEFEL CJ: Her Honour.

MR ABBOTT: Sorry, her Honour - I am terribly sorry, your Honour:

The position of Hayne J in Mahmood is to be understood against the background of the law in Victoria. In that State, wholly exculpatory self‑serving statements are traditionally adduced by the Crown as part of its case as a matter of fairness ‑

See those cases referred to:

That is not the position in Western Australia . . . or in Queensland ‑ ‑ ‑

KIEFEL CJ: Well, that is to say no more than Justice Hayne was a member of the Court in Victoria where the Victorian practice was stated. I am not sure it takes it anywhere, but that is all her Honour really seems to be saying. There is a Victorian practice which differs from the West Australian practice.

MR ABBOTT: With respect, your Honour, I rather read it as a view being put forward that Justice Hayne’s remarks should somehow be confined to Victoria.

KIEFEL CJ: I thought it was rather that there was a Victorian practice which might be seen to be reflected in what Justice Hayne has said in Mahmood and in other cases when he was a member of the Victorian Court of Appeal.

MR ABBOTT: Well, it is obvious that Justice Hayne was well aware of the position in Queensland and Western Australia because of what he said about Callaghan’s Case.

KIEFEL CJ: Yes, quite.

MR ABBOTT: In any event, may I move then on to Barry’s Case which is the second of the cases where a court distinguished the remarks of Justice Hayne in Mahmood. Barry (2009) 197 A Crim R 445, which is Part D, volume 1, casebook page 740, Justice Kourakis, as he then was, addressed Mahmood’s Case at page 775 of our casebook – I am sorry, at page ‑ ‑ ‑

GORDON J: Maybe if you gave us the paragraph number that would be of assistance.

MR ABBOTT: Yes.

EDELMAN J: Paragraph 55.

MR ABBOTT: At 755. He starts at paragraph 55 of the judgment dealing with what Justice Hayne said in Mahmood’s Case. At paragraph 57 he makes further reference - his Honour then Justice Kourakis says:

that on this point Hayne J directed his attention to the selective leading of some out‑of‑court assertions and not others.

Then at paragraph 58 on page 755, his Honour then Justice Kourakis said:

The words I have emphasised in that passage reflect the factual circumstances with which the judgment of Hayne J in Mahmood dealt, and against which, it must be understood. In my respectful opinion, so understood the passages just cited are directed to cases where there are several out‑of‑court statements; in those cases the “proper” or “fair” presentation of the prosecution case will “ordinarily require that the prosecution lead all that evidence”. That proposition does not touch in any way the question raised in the present case –

I interpolate, which did not relate to several out‑of‑court statements, but only one:

where the prosecution did not adduce any evidence of any inculpatory remarks -

his Honour having construed the record of interview in Barry’s Case as one which was essentially exculpatory. In our respectful submission, the statements by his Honour then Justice Kourakis should not be accepted by this Court. In our respectful submission, the remarks of Justice Hayne in Mahmood are not directed merely to the situation where there are several out‑of‑court statements. They are matters, statements of principle, no more and no less than what this Court has said in Soma’s Case.

We note, as I have said before, that his Honour then Justice Kourakis did not address Soma’s Case, nor did he deal with Richardson, Whitehorn and Apostilides. Further, what his Honour said at paragraph 68, casebook page 758:

In my view it would be anomalous to require the prosecution to put before the Court as probative material the self serving assertions of the defendant, whom it very obviously, does not consider to be a witness of truth.

In my submission, if by making that statement his Honour is saying that, a fortiori, defendants are liars, we say that it is inconsistent with the usual practice where the prosecution rely on inculpatory statements as reliable, they can hardly then say that the exculpatory statements are unreliable. We say that what his Honour said at paragraph 68 misunderstands an admissible record of interview that is inculpatory is, therefore, relied on because it is reliable and we say so should a mixed record of interview.

The third case is Singh. Singh is reported for our purposes in our Part D, volume 2 and it is at page 1257 and Justice Kelly deals with Mahmood’s Case at paragraph [50] of her judgment at - page 1294 it starts. However, I take the Court to her Honour’s distinguishing of those remarks at paragraph [54] of her judgment at page 1297 of the casebook. Her Honour again echoes what President McLure said where her Honour said, paragraph [54]:

The remarks of Hayne J were obiter . . . Further, although the underlined words appear to be in general terms, these remarks must be seen in the context of the case in which the Crown tendered one of two related out of court statements by the accused, and sought to draw damaging inferences from that part of the second statement (the re‑enactment) that had been tendered by the accused with the consent of the Crown. Hence, no doubt Hayne J’s use of the phrase “all that evidence” – meaning “not just selected parts of that evidence”. The meaning of the remarks in that context is simply an application of the same well established principle that if the Crown is going to rely on admissions in a record of interview, it must take the good with the bad and tender the entire interview, the exculpatory along with the inculpatory.

I will not read the rest of what is in paragraph [54] other than to go to the last sentence. Her Honour said:

Seen in that context it does not appear that Hayne J is asserting that there is a duty on the prosecution to tender any statement made by an accused so long as it contains within it something that could be characterised as an admission or otherwise admissible material.

We say, with respect, that these comments again overlook that Justice Hayne’s remarks in Mahmood at paragraph 39, to which I have already taken the Court, commence with the expression “In general” and are not related to the specific facts of the case and both at the beginning of paragraph 39, at the end of paragraph 41, which I have already read out and I will not read again, his Honour deals directly with the appropriate principle being premised on there being admissible evidence available to the prosecution.

In Singh’s Case, Justice Kelly regarded then Justice Kourakis’ remarks and reasoning in Barry as unassailable and the remarks of, we say, Chief Justice Kourakis in Barry must be treated with caution because, in any event, we do not agree with them but they fail to refer to Soma, Apostilides, Richardson, et cetera.

May I now turn then to paragraph 7 of our outline which is the justification, we say, in the ordinary case for the tender of the video recording of a record of interview. The necessity, as we have said in our written outline of oral argument ‑ the necessity for a rule that ordinarily the prosecutor is obliged to tender a mixed record of interview can be seen to be informed by three overlapping considerations.

The first justification, namely the whole of the relevant evidence, must be put to the jury. We say in relation to this case the specific facts of Mr Nguyen’s matter is that the Criminal Code provides for both an offence under section 188 and a defence under section 29 of the Criminal Code and it forms no part of the prosecutor’s function to ensure a conviction by presenting evidence which is only relevant to the offence and to withhold evidence which is relevant to both the offence and the defence.

We say this simple example would demonstrate this, that there would be no question that it would be breach of a prosecutor’s duty and would give rise to an unfair trial were the prosecutor to decline to lead real evidence of what happened in the form of CCTV because it would add a tendency to support self‑defence - you cannot do that; equally, a breach of the prosecutor’s duty to help a fair trial and do fairness to the accused to decline to call an independent witness who would give evidence which was both inculpatory and exculpatory and, similarly, a credible and reliable witness to give that sort of evidence.

We say consequently that it is no less a departure of the duty of fairness to decline to lead inculpatory evidence in a record of interview merely because it contains exculpatory evidence which would be favourable in some respects to the defence. You cannot pick and choose, and a prosecutor should not be able to pick and choose merely by weighing up something as being possibly more favourable to the defence than to the prosecution.

The second justification that we set out at paragraph 7.2 is to avoid misleading the jury. We say it is the prosecutor’s duty to avoid the presentation of a misleading account by omission and/or excision. This can arise where there is other evidence in addition to the interview, but evidence which takes a significance from the possible explanation afforded by an accused.

For example, the accused’s explanation in a mixed record of interview may point to the existence of, say, for example, a third party who the accused asserts was present at the scene. That account may give significance to what might otherwise be an entirely benign aspect when the CCTV footage is viewed or the evidence of another witness is considered. In any event, we say it is trite that there should be no presentation of a case by reason of omission or excision.

The third reason for the rule is the encouragement of participation by accused at interviews. This is, we say, the public purpose that is served by the public engaging in interviews with the police. From the perspective of the accused the public purpose of participation in an interview is not served when what an accused person has said to the police at the point of the decision to lay a charge is not put before the court or a jury when deciding whether the accused has committed the offence, because the reason why the police interview people is - at least a number of reasons, but obviously to avoid charging the wrong person and, perhaps more importantly to record the answer that the accused makes, or the suspect makes, when the charge is alleged.

The fact that police are able to interview people, the fact that people respond to interviews and the fact that the police serve the public interest in the detection of offenders and bringing offenders to conviction – those who commit offences – is, in our submission, quite a clear public purpose in the way interviews should be led in the course of trials.

We say it is inconsistent with the advancement of the public interest for the admissible record of interview – an otherwise admissible record of interview, only to be used by the prosecutor in a trial when it suits him or her, when he thinks there is more benefit by leading it – more benefit to the prosecution than to the defence – in other words, to only use admissible records of interview when it can aid the prosecution to obtain a conviction.

If that were allowed to happen, we say the incentive for members of the public to participate in the interview process would be diminished because what happens now in an interview is that there is obviously an expectation on the part of the interviewee, supported by what they are told by the police, that the interview may be used against you.

Indeed, in this case, Mr Nguyen, as Justice Blokland said in her judgment at core appeal book 35 – Justice Blokland made the point that Mr Nguyen answered that it would be. The police said, “This may be used against you; what do you understand by that?” Mr Nguyen in this case said, “I understand it will be”.

We say that if that is the expectation of the public, that it will form part of any case, were the public to become aware that that expectation is not well‑founded and it depends on whether the mixed statement is of more use to the prosecution than to the defence in the eyes of the prosecutor, there would be less of an incentive for the public to join in and assist the police and participate in interviews.

We say that this clearly is borne out in self‑defence cases. The entire purpose of the interview is to discern how and why certain injuries were caused or sustained and the context in which they occurred. We say that the public interest is, indeed, another reason for the admissibility of mixed records of interview.

I now come to the last paragraph of our outline of oral argument ‑ the requirement to tender and what constitutes good reasons. I have in part answered this during the course of my remarks to the Court, in my

submission to the Court earlier, but we say that the requirement to tender the interview is subject to the qualification: if the prosecutor has, for good reason – whether one calls that good reason or proper reason – concluded that the interview has been demonstrated not to be credible or reliable, then the prosecutor need not tender it. It would be a proper exercise of discretion in accordance with what was said in Richardson’s Case and in other cases.

However, we say that proper reasons in any case could never be those which are guided by tactical considerations directed at altering the forensic contest. Justice Hayne, in the passage I have already referred the Court to, when he spoke about not open to the prosecution to pick and choose, put it conveniently and properly. He cited for that quotation the old decision of this Court of Jack v Smail (1905) 2 CLR 684 at 695 and similarly the quotation I have already given the Court from Whitehorn’s Case, where his Honour Justice Deane referred to “tactical considerations”.

So proper reasons, I conclude by saying, in the case of this appellant could not be based on unreliability or inadmissibility because the prosecution had led the interview at the first trial and provided no reason other than tactical reasons for it not to be led at his retrial. If the Court pleases.

KIEFEL CJ: Thank you, Mr Abbott. Yes, Mr Read.

MR READ: Your Honours, I cannot sensibly add to the discussion on the principles that Mr Abbott has very clearly and comprehensively set out. Accordingly, I thank him and I respectfully adopt his submissions, but there are a couple of matters I would like to point to.

Firstly, in relation to Barry’s Case there, in my submission, was an oversight in referring to the New South Wales Court of Criminal Appeal of Golding & Edwards (2008) 100 SASR 216, paragraph 53, where Justice Gray refers to - it is at appeal book, and referred to in my outline, Part D, volume 1 of 2, page 100. The problem is - perhaps I can refer to paragraphs which have two lots of authorities from both appellants.

So there is the extract of Justice Hayne’s passage from Mahmood and then directly after that, at paragraph 54, Justice Gray – in my submission, the inference is that Justice Hayne’s approach is adopted in South Australia, saying:

The practice in this State –

is for prosecutors to lead ‑ ‑ ‑

KIEFEL CJ: I am sorry, you are referring to Justice Gray’s ‑ ‑ ‑

MR READ: Judgment.

KIEFEL CJ: ‑ ‑ ‑ judgment in Barry’s Case.

MR READ: No, no, in Golding & Edwards.

KIEFEL CJ: I am sorry.

MR READ: Which is a case which Justice…..did not refer to, and that was 18 months by their Court of Appeal.

KIEFEL CJ: Yes.

MR READ: That is in my book of authorities. It is submitted that the Court of Appeal ‑ ‑ ‑

KIEFEL CJ: Sorry, where does his Honour say what is the practice in South Australia?

MR READ: It is at paragraph 54, page 236, or 1006 of the appeal books.

GORDON J: Is your short point that this is inconsistent with Barry and not referred to by Barry?

MR READ: Yes, that is right. It also is inconsistent with the approach taken by Justice…..in seeking to distinguish Mahmood on the basis that really it was about a failure to lead the whole narrative. At the risk of overemphasising this, in the paragraph cited, which is the complete paragraph, paragraph 53 of Golding & Edwards, I would like to make these observations. Justice Hayne sets out two propositions, and the first proposition is that:

If an accused has made inculpatory statements –

There is no reference to any form of mixed statement or exculpatory aspect:

the prosecution should ordinarily lead evidence of all those statements. It is necessary, of course, to take account of statutory provisions governing admissibility . . . But subject to that important consideration, it is not open to the prosecution to pick and choose between those statements –

So that is the first principle. Then he says:

And in leading –

those admissions, that is, all the admissions that are made that are admissible, you have to lead the good with the bad. In my submission, the next paragraph puts paid to any suggestion that that is not the principle stated because he says:

Application of the last‑mentioned principle ‑

So there are two principles: to lead all the evidence, and if it has to be, you lead the exculpatory aspects too. Secondly, if all this analysis was concerned with was leading the whole narrative, there was no real need to refer to Callaghan. What his Honour is saying is that Callaghan does not stand for the proposition that there is effectively a simple choice as to whether to lead mixed statements of records of interview. So that is, perhaps, overhead in submissions already, and I was reluctant to make it, given Justice Edelman’s remarks at the outset.

GAGELER J: You took us to paragraph 54.

MR READ: Yes.

GAGELER J: Do you say that states correctly what the practice was in South Australia until Barry was decided?

MR READ: It is difficult to say what the practice is now in South Australia to the degree that Barry was a single judge and this is a judge at the Court of Criminal Appeal.

KIEFEL CJ: Not only that, I see Chief Justice Doyle agrees with what Justice Gray - with his reasons generally.

MR READ: Yes. The other small point, and again, at the risk of overdoing it, is the suggestion that the critical paragraph in Soma which has been referred to, that is the paragraph 31, that that paragraph 31 of Soma ‑ ‑ ‑

BELL J: Of which decision?

MR READ: Of Soma, sorry, your Honour, that the phrase:

if it wished to rely on them at the respondent’s trial, was bound to put them in evidence –

in my submission, it is not open, particularly given the final passages in that paragraph, it is not open simply to say that that sentence reads down the otherwise important obligation of the prosecution to simply a question as to whether it wishes to rely on it for its purposes. In my submission, that is taken out of context. This was a situation where there was a record of interview with admissions. The prosecution kept that record of interview, in effect, for the purposes of attacking credit at a later stage in the trial.

That is what, in my submission, is meant by that passage, that if they wanted to use it in anticipation of the accused giving evidence then they needed to lead it. It was not just a general licence to exercise the discretion in a very wide way.

In relation to the general principles in relation to fair trial and the criminal process, I would simply like to refer the Court, and I will not read it, to Azzopardi v The Queen, which is at Part C of the authorities, page 193 at paragraph 34 and then importantly at paragraphs - it is really the end of 47 and 48.

What this Court is recognising then, and this case of course was in relation to the question of comment of failure of an accused to give evidence, and it recognises the very difficult considerations that may go into the issue as to whether to call one’s accused – so I point that out as well.

Your Honours, perhaps to try and give – and it is already accepted that the principle put is that it is not an absolute obligation to lead an admissible record of interview, but that there must be good reason. As already confirmed by the Court, the first reason being the Pearce‑type reasons, it was contrived or choreographed.

Indeed, in Barry’s Case, Justice Kourakis recognised that that was where a person came down a month later with notes and photographs, and in the alternative, he found that it may well have been an appropriate exercise for discretion to lead on normal principles.

An interesting case that surprised me on – and we all just accept that Mule stands for the directions in relation to how a judge directs with regard to a record of interview, but the facts in that case were quite extraordinary vis‑à‑vis the record of interview. It does not appear that there was any need for the record of interview to be tendered for the purposes of identity or the fact of possession.

But when one reads this Court’s description of the circumstances of the police executing a warrant on Mr Mule’s premises, they found guns, drugs, a commercial quantity of drugs, and money. Mr Mule was up in Broome. There was a phone call by his wife; there were recordings of those phone calls. Then about a week later he presented with his solicitor at the police station and, as this Court describes it, it was as if the solicitor was leading Mr Mule through his account, like evidence‑in‑chief was the expression this Court used.

That would clearly be a situation, if the prosecutor decided it was contrived. My outline points to others that may be that it is abjectly false or fanciful. In - I am just trying to remember which case; the description in one of the cases is that it is incapable of belief. That needs to be identifiable and, in my submission, it will be fairly plain in practice when such a record of interview comes into that type of category and there probably will not be a great deal of fuss about it.

The other situation that Justice Blokland mentions is where perhaps the interview, although it may have admissions and a defence enunciated in interview but really is just a scurrilous attack on the prosecution or complainant et cetera, and in those situations it may be that the prosecution can, legitimately, come to the view that it would not be in the interests of justice to lead the record of interview.

Now, the underlying premise is this. If there is admissible evidence that is important or that is relevant to a fact in issue which, of course, admissible evidence is, then it is squarely within the province of the jury to decide what weight to give to it. It should not be withheld without good reason.

With regard to the principles, in my submission, the analysis of Justice Hayne in Mahmood is convenient. There is also the very, very long and extensive history of admissions and the prosecutor’s duty in Helps, in the judgment of Justice Peek, which is in the appeal books. Usefully, is the outside view – it is not really an outside view, but I suppose it is an academic view of Justice Hinton – now I think he is DPP of South Australia – in relation to the importance that all relevant evidence is before the finder of fact. And if I may say, by no means least, the analysis of Justice Blokland.

In relation to this case, your Honours, perhaps I can put it this way. I am in a position to go through all the admissions in the record of interview, but I do not think I need to. There were significant admissions, and the admissions amounted to identity. He drew a picture of where he was in the vehicle. He said he saw the knife. He said he saw the young boy put the knife to the taxi driver’s neck. He said that he heard people – his expression was “saying money”, presumably he meant “demanding money”. That context, to use a technical term, showed that he was in amongst it and without a proper explanation it is very difficult to work forward from there.

GORDON J: Does the CCTV make a difference?

MR READ: The CCTV – and that was the basis of the final submissions, your Honour – was shown picking up the stick and putting it down at the side. There was a suggestion by the Crown that he must have seen the knife. Well, he admitted that in his record of interview. The submission ultimately was a submission that the jury should have a reasonable doubt because there was a hypothesis consistent with innocence, namely, that he was not aware of any pre‑plan to rob the taxi and nor did he participate.

In my submission, on the CCTV, that was arguably open. The problem was this. That submission was a lawyer’s submission at the end of the day without any evidential foundation at all. Had the record of interview been played, it would have provided an evidential foundation for the defence, namely, that the prosecution may have a reasonable doubt about his participation. That was an issue for the jury to consider and assess what weight they would give to his account.

It is said that it is unfair to the prosecution, and while I am on that point, the reasons given for not leading the record of interview as set out in my short summary is, firstly, the interview was not admissible. That is not correct. There was no unfairness. If it was not adduced, it is a matter for the Crown as to what evidence it calls and the accused can give evidence. Three, the evidence would go through untested and that would be unfair to the Crown.

The question of testing cross‑examination, Richardson raises this issue that cross‑examination may be one of the considerations, and it may be a consideration if there are real circumstances that might suggest unreliability; it may be a consideration but none of the other cases really follow up on that line of reasoning. Cross‑examination is but a tool to test truth. It is not the be‑all and end‑all. It is sometimes very difficult to think of what cross‑examinations one has done over many, many years. Normally one is just chipping away at the sides.

There were other abilities to test the reliability of this record of interview. There was the evidence of the taxi driver who said Mr Singh appeared to be sober, was giving directions, as compared with Mr Singh’s interview when he said he was very intoxicated and he said that on a number of occasions. The taxi driver said he fled with all the other boys. Mr Singh said he fled alone. So there were things by which the jury could assess it and put it all into the mix. That, though, was a question for the jury to determine, not for the prosecutor.

BELL J: Mr Read, just directing your attention to your paragraph 13 where you set out the prosecution’s reasons for not adducing the interview, the first is that the interview was said not to be admissible, and you refer to the appellant’s further materials which at page 95 record the prosecutor submitting that the Crown’s view was that the record of interview was hearsay.

MR READ: Yes.

BELL J: The trial was conducted subject to the Northern Territory Evidence Act sometimes described as ENULA so, to the extent that there were admissions as you have identified, the position was that the record of interview contained admissible material under section 81 and you would contend under 81(2) the exculpatory material was equally admissible.

MR READ: Yes.

BELL J: I understand you put that the prosecutions said the interview was not admissible, but that is not accepted on your part, is it?

MR READ: No, it is not accepted, nor was it accepted by Justice Hiley at first instance or anyone since.

BELL J: Yes.

GORDON J: You take issue with each of those three subparagraphs, do you not, in 13?

MR READ: As not being sufficient, yes.

GORDON J: Or inaccurate and not sufficient, is that the position?

MR READ: It is a fair position, your Honours.

BELL J: So where does that leave us? In the case of Mr Nguyen, Mr Abbott relies on the frank admission that the decision not to tender the interview was for tactical reasons. In circumstances in which you say the interview was admissible under the Evidence Act, what – do you submit an inference is to be drawn that there was no good reason?

MR READ: Well, it is a wrong basis, just as in Soma the prosecutor tried to assert that the record of interview was inadmissible and he was apparently wrong on that as well.

BELL J: So, it is a question of there being absent any proper reason.

MR READ: Absent a proper reason. In, for instance, Apostilides, a paragraph cited, indicates that there needs to be some proper and identifiable reason and where Apostilides goes through its propositions that the prosecutor ought to be able to assess those reasons. Your Honours, unless there is anything further, they are my submissions.

KIEFEL CJ: I think your junior thinks there might be.

MR READ: Sorry? Yes, it was an unusual concession apparently by the prosecution, paragraph 15 of my notes ‑ and I was not at the Court of Appeal but it is footnoted by Justice Blokland that apparently they conceded if the discretion miscarried then there would be a miscarriage which is perhaps neither here nor there.

EDELMAN J: Just before you sit down, can I just ask you about your point 12(iii) as an example of a sound reason for refusal to adduce being that the interview is abjectly false or fanciful. Can I just ask you precisely – what do you mean by that? For example, I realise it was not put but had it been put in this case that the CCTV evidence was such that it rendered the defence account false or fanciful, would that have satisfied the requirement or not?

MR READ: That would have, if the CCTV was such – so, for instance, if he picked up the stick and given the taxi driver a jab with the stick, one would – it may well be open to the prosecutor to say, well, that is just absurd, to say that he was not involved in those circumstances, unless there was some collateral defence as to intoxication.

EDELMAN J: In many of these cases, the defence account will be one which the prosecution will characterise, usually in closing submissions, as false or fanciful. Is what you mean by 12(iii) really whether the prosecution is capable of characterising it as abjectly false or fanciful or do you really mean that it is a matter that is just simply not open to the jury to conclude?

MR READ: Perhaps it is of the older authorities where it is stated where the interview is not just a question of a belief that it is unreliable or false but ‑ ‑ ‑

NETTLE J: Well, it is clear to demonstration that it is false and fanciful.

MR READ: That is right. I think it was incapable of belief, and that perhaps is similar to tendency evidence where, of course, considerations of reliability are not a consideration as to admissibility but if it did get to that threshold where it was so extreme, there may be a basis for it, but ultimately ‑ and that is, in my submission, the development of the law in relation to tendency evidence, that matters of credit and fact should be left with a jury unless there is very good reason not to.

KIEFEL CJ: Yes, thank you. Yes, Mr Morters.

MR MORTERS: Thank you, your Honours. What I propose to do is deal first with the complaint by my learned friend, Mr Abbott, in relation to the inadequacy of the explanation that he says was provided for not playing the interview in the matter of Nguyen, and then I propose to deal in general terms with the matter of Singh, and much of the submissions I make in relation to Singh will relate to, quite obviously, the argument that is presented in relation to Nguyen, and then finish with some limited submissions in relation to Nguyen specifically.

If I can start with the complaint that the prosecutor that appeared at an interlocutory stage told the trial judge that the reason why he was electing in this second trial not to play the interview was for “tactical reasons”. At page 29 of the appellant’s book of further materials, about the middle of the page, her Honour questions the prosecutor:

HER HONOUR: What’s the change Mr Murphy, you just think you’ve got a better chance of winning without using it is that the situation?
MR MURPHY: To be blunt, your Honour, yes it’s a tactical decision.

My learned friend, Mr Abbott, has obviously made extensive submissions about the inappropriateness of such a response, but, your Honour, that ‑ ‑ ‑

GORDON J: It goes on, does it not, because the next response that the prosecutor makes to her Honour’s question makes it clear that it is tactical, does it not?

MR MORTERS: Your Honour, in fairness to the prosecutor, it would appear that he attempts to withdraw from that very frank statement by submitting that there is a basis as to admissibility, which is the reason why he is choosing not to play it in this instance, but it is probably better illustrated by what occurs at a later point in time, and if I can take your Honours to the appellant’s book of further materials at pages 74 to 75.

NETTLE J: Just before you go, what do we get from the passage that you have just read to us that contradicts the idea that the only reason for not tendering the record of interview at the second trial was tactical?

MR MORTERS: Your Honour, that was an opinion expressed by external counsel conceded on behalf of the DPP, but it is clarified by the evidence which comes at pages 74 to 75.

NETTLE J: I see, thank you.

MR MORTERS: So from page 74, or perhaps a little earlier, the bottom of page 73 through 74 and following, Ms Dixon gives evidence, she is cross‑examined about a statutory declaration that she provided to the court, which is at page 157 of that book, and she sets out the reasons why the Director of Public Prosecutions has elected, in this second trial, not to play the interview, and they are significantly different to the very bald statement that is made by the prosecutor at that earlier point in time on page 29. In particular there is an email which is annexed to her statutory declaration, which is at page 162, where she, in effect, communicates to the prosecutor that there is a legal basis for not tendering the interview in the second trial.

GAGELER J: What is the legal basis?

MR MORTERS: That it is not admissible. That it is inadmissible by virtue of section 59 of the Uniform Evidence Act, or ENULA as we refer to it in the Northern Territory.

BELL J: This was a record of interview that contained materials capable of amounting to admissions, was it not?

MR MORTERS: Your Honour, I have an argument to make in relation to that; that is the principle argument I will make as to why the interviews in each instances are not admissible.

GORDON J: That was not the view taken by the court below, was it?

MR MORTERS: No, your Honours. But, in any case, if I can say this, if it is accepted by this Court that the representations contained in the interview are admissible, the respondent’s position is that the comment made by the prosecutor that it was for tactical purposes would only be of any significance if there was an obligation placed upon the prosecutor to provide an explanation in the first place.

NETTLE J: That cannot be right. Judges frequently ask prosecutors why is it thought inappropriate to call a witness or to tender evidence. It happens in trials every day of the week.

MR MORTERS: The questions are put in relation to a decision not to call a witness. All the authorities that my learned friends have referred to, apart from a selected passage in Soma, and the decision of his Honour Justice Hayne in Mahmood ‑ ‑ ‑

NETTLE J: Mr Morters, even if they were confined to decisions to call witnesses, and they are not, it would demonstrate the necessity of the prosecutor honestly answering the inquiry of the judge as to why it is thought appropriate not to call a tender, surely.

MR MORTERS: What was being asked of the prosecutor is, why the change in approach for the retrial.

NETTLE J: Exactly.

MR MORTERS: The prosecutor was answering, inaccurately in the respondent’s submissions, that it was for tactical reasons. The true reason for not tendering is set out in the material that I have referred your Honour to from page ‑ ‑ ‑

NETTLE J: I had understood your proposition to be that.

MR MORTERS: Yes.

NETTLE J: What was said by the prosecutor to the judge on that occasion was nihil ad rem because there was no obligation on the part of the prosecutor to disclose a reason to the judge, notwithstanding that he or she had asked for one. Am I incorrect in my understanding of that submission?

MR MORTERS: Your Honour, obviously the prosecutor would be expected to provide a response to the judge about why the change in attitude, and that may well go to whether some unfairness would accrue because of the authorities that say that the Crown is not to seek to improve its case as a consequence of an appeal in a retrial. That may well be why her Honour was inquiring of the prosecutor why he was proposing to change the way that he presented the case in this second instance.

Her Honour Justice Blokland in the decision of Nguyen states that she is of the view that the decision not to play the interview does not conflict with the authorities which preclude the Crown from trying to improve its case on retrial, it is not that sort of situation.

KIEFEL CJ: Mr Morters, just to be clear about this, as I understand what you are saying, you seek to put a different complexion upon what was said by the prosecutor in answer to the trial judge’s questions.

MR MORTERS: At page 29.

KIEFEL CJ: And you wish to do that by reference to pre‑existing advices concerning the admissibility or non‑admissibility of the evidence, whether it constitutes an admission.

MR MORTERS: The explanation provided by the ‑ ‑ ‑

KIEFEL CJ: Ms Dixon.

MR MORTERS: Ms Dixon.

KIEFEL CJ: Which concerned whether or not it amounted to ‑ whether or not it was affected by the Uniform Legislation Act, but, as I think you have conceded, the Court of Appeal was not of that view. You need a notice of contention to run this argument, do you not?

MR MORTERS: I am not sure that it was specifically referred to in the Court of Appeal decision.

KIEFEL CJ: Well, put it this way. Do you seek to uphold the decision of the Court of Appeal by reference to a point of law arising under the Evidence (National Uniform Legislation) Act as to whether or not the evidence was admissible? And, if so, I think you need a notice of contention.

MR MORTERS: Your Honours, her Honour Justice Kelly, with whom Justice Barr agreed, concluded in both matters that for all intents and purposes the responses made by the accused in each matter were exculpatory in nature. That is the contention that the respondent primarily relies upon in its submission, that the ‑ ‑ ‑

KIEFEL CJ: When you say “primarily”, paragraph 2 of your outline, you say your:

primary submission is that the representations identified . . . as inculpatory . . . do not constitute admissions –

under the Act.

MR MORTERS: Yes.

KIEFEL CJ: That is not a matter dealt with by the Court of Appeal, is it?

MR MORTERS: The majority in the Court of Appeal in Singh concludes that a fair analysis of the contents of the interview would result in characterisation of the representations contained in that interview as being, I think the term is used, “generally exculpatory”, which picks up on a ‑ ‑ ‑

EDELMAN J: Do you go so far as to say that there is nothing in the video that can be characterised as either an express or an implied admission?

MR MORTERS: Your Honour, that really depends on how one approaches the representations contained in the interview. If one looks at each representation independently of other representations contained in the interview, then one might form a view that a particular representation is in some way against interest. But if one looks at the representations by reference to other representations, then that will not necessarily be the conclusion that is drawn, and that is particularly the case ‑ ‑ ‑

GORDON J: I am a bit lost, I am sorry, because I thought that there was common ground that there were admissions that he threw bottles of beer.

MR MORTERS: Threw bottles of beer in circumstances where he was being pursued by two people, having been attacked by another one of those people. So, to look at that ‑ ‑ ‑

KIEFEL CJ: Well, you are saying they are admissions made for the purpose of raising a defence of self‑defence?

MR MORTERS: Exactly, your Honour.

GORDON J: That means you have got both inculpatory and exculpatory admissions – statements.

MR MORTERS: Well, your Honour, the respondent’s primary position is that they ‑ ‑ ‑

GORDON J: They are entirely exculpatory?

MR MORTERS: Looking at them in the context of other representations made in the interview they are, for all intents and purposes, exculpatory statements.

GORDON J: Okay. So I have two questions then. If that is the submission, that is not the position you adopted below.

MR MORTERS: It was the conclusion that her Honour Justice Kelly drew in relation to both of the interviews, consistent with the comments of ‑ ‑ ‑

KIEFEL CJ: Would you like to take us to those passages? Are you dealing with Nguyen or Singh at this point?

MR MORTERS: We can start with Singh.

GORDON J: Are we in Singh now, or Nguyen?

MR MORTERS: Singh.

KIEFEL CJ: I thought we were in Nguyen.

MR MORTERS: Sorry, I was going to deal with the complaint that the prosecution had based its decision on tactical reasons. I was simply going to confine my argument ‑ ‑ ‑

KIEFEL CJ: Yes, that is ‑ we are in Nguyen territory, are we not?

MR MORTERS: ‑ ‑ ‑ in relation to that, that was purely in relation to Nguyen.

KIEFEL CJ: So what did the court ‑ how did the court characterise the record of interview as containing admissions or not?

GAGELER J: You might start with the formal answer to question 1.

MR MORTERS: Can I take your Honours to ‑ in the matter of Singh, can I take your Honours to the core appeal book page 95, paragraph [6] of her Honour Justice Kelly’s judgment.

KIEFEL CJ: Paragraph, I am sorry?

MR MORTERS: Paragraph [66].

KIEFEL CJ:

Clearly the interview contained some admissions ‑

That is the second sentence.

GORDON J: Just so I am clear about this, is that I had understood at paragraph [5], pages 47 to 48 there was a summary of the interview provided by the appellant which was not contested by the Crown which sets out the admissions.

MR MORTERS: That is correct. It sets out the representations contained in the interview.

GORDON J: As the Chief Justice says at [66]:

Clearly . . . contained some admissions ‑

MR MORTERS: She goes on to say:

However, there is no necessarily sharp dividing line between statements of an accused that are entirely exculpatory and those that may be characterised as “mixed”. A statement that contains within it utterances that might technically be admissions may nevertheless be in substance purely exculpatory if the admissions are of a minor nature concerning matters that are not genuinely in issue and are only made by the accused in order to tell his exculpatory version of events. To my mind that is the case with this statement: it is, in substance, an entirely exculpatory account notwithstanding that it contains some admissions. In any case, I do not think that it matters whether the statement is described as “entirely exculpatory” or “mixed”: there is no general principle that a prosecutor must, as a matter of fairness ‑

Then she goes on to the second argument that I am going to make.

BELL J: Mr Morters, had it been necessary to establish that Mr Singh was in the taxi, the contents of the record of interview, regardless of the exculpatory aspect of it, would have been of prime importance – that is, if the camera in the taxi had not worked ‑ the significance of Mr Singh’s admission would have been considerable.

Surely, the admission is an admission. It may be that it is a matter of lesser moment because the prosecution is in the luxury of having other evidence, but the notion that the interview was not admissible under section 81, which I understand you are now seeking to advance, is not without difficulty, surely.

MR MORTERS: Your Honour, except that the dictionary to the Act defines an admission as:

a previous representation that is:
. . .
(b)adverse to a person’s interest in the outcome of the proceeding.

So it is not the time that the representation is made that the judgment is made as to whether it is adverse or not. It is at the time when the proceedings are on foot that the assessment is made, and I would have to ‑ ‑ ‑

BELL J: Was any of this argued below?

MR MORTERS: Your Honour, there were submissions. The same approach was taken before the Court of Appeal as is being taken here. The primary argument that was made in relation to the interviews were that they were not mixed but rather exculpatory in nature ‑ ‑ ‑

KIEFEL CJ: I think that is perhaps a slightly different point, Mr Morters. The Court is going to adjourn shortly. You need to consider over the luncheon adjournment whether or not the Court of Appeal in its reasons dealt with the question of admissions in the way in which you are now contending in each case, whether it dealt with an argument in relation to admissibility of the evidence, and you need to consider, in light of that, whether you need to seek leave to file a notice of contention. While you are considering those matters, you might also bear in mind that, of course, we are dealing here on these appeals with the way in which the prosecution conducted itself. The Court will adjourn to 2.15.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Morters.

MR MORTERS: Thank you, your Honour. Perhaps if I just go back a step. The first submission that I was attempting to make is that my learned friend, Mr Abbott, made much of the comment of the prosecutor at page 29 of the appellant’s further book of materials in the matter of Nguyen that the prosecution was not playing the interview for tactical reasons.

The respondent’s submission in relation to that is that that statement has to be considered in light of the information that was conveyed to the court by Ms Dixon at pages 74 and 75 of the same book, and by reference to the email that was attached to the statutory declaration, which was tendered in the interlocutory part of the proceedings and found at page 162 of that.

KIEFEL CJ: Well, true it is that an affidavit was put before the court, I assume by way of explaining the chronology of events. But the court actually does not deal with that. It accepts what the prosecutor said at the trial in answer to the trial judge’s question.

MR MORTERS: The trial judge sought explanation following that statement ‑ following the statement by the prosecutor ‑ ‑ ‑

KIEFEL CJ: The court does not make anything of Ms Dixon’s ‑ of the affidavit of Ms Dixon, does it? I am just looking at the referral. It simply states at paragraph 7 that the counsel for the Crown:

indicated the decision was made for ‘tactical’ reasons –

That is at page 4, paragraph 7. And goes on to say that, if it:

was exculpatory and if it was tendered the accused would not be subject to cross‑examination.

The implication being that it was sought thereby to get him into the witness box.

MR MORTERS: The respondent’s submission at this point in time is that your Honours should not accept that the motivation of the Crown in not tendering the interview was for the purposes of gaining a tactical advantage.

BELL J: But that is what the prosecutor told the Court.

MR MORTERS: That is what the external counsel who was appearing for the Crown ‑ ‑ ‑

KIEFEL CJ: I do not think that makes any difference. He was appearing for the Crown. End of story.

MR MORTERS: Qualified by the information provided by Ms Dixon that the instructions ‑ ‑ ‑

KIEFEL CJ: Which does not appear to have been accepted. It does not appear to have been accepted as altering, and how could it? It was a conversation ‑ correspondence which took place before the trial and before the question was put to counsel for the Crown, which was answered distinctly.

MR MORTERS: No, your Honour, it was not before the question was put before counsel for the Crown, the statement in relation to tactical reasons came before the evidence of Ms Dixon.

GORDON J: Can I ask a separate question. Did counsel for the Crown ever withdraw that statement that it was for tactical reasons? No.

MR MORTERS: By implication, the evidence of Ms Dixon seeks to explain to the court the reason why the decision was made, because the DPP was of the view that the evidence was inadmissible.

KIEFEL CJ: The evidence of Ms Dixon by affidavit might have been put in afterwards but the facts and the correspondence with which – which is the content of her evidence – preceded the trial, is that not correct?

MR MORTERS: Yes, your Honour.

KIEFEL CJ: So when she is giving evidence, she is giving evidence of events which preceded the trial.

MR MORTERS: Yes, your Honour. And the conclusion that can be drawn from that is that the Crown Prosecutor who appeared at first instance did not act in accordance with instructions.

KIEFEL CJ: No, that is not an inference to be drawn at all. Where does it appear anywhere that he was instructed to say other than what he said?

MR MORTERS: In the email correspondence ‑ ‑ ‑

KIEFEL CJ: You are effectively calling him – you are effectively saying that he acted contrary to instructions.

MR MORTERS: No, your Honour, I am not saying that at all. It could equally be the case that he misinterpreted the instructions that were being provided. But if one reads through those emails that are attached to Ms Dixon’s affidavit, the submission is that one will see that what was being explained to Mr Murphy was that the Crown was of the view that there was no obligation, no legal obligation to play that interview in the second trial.

KIEFEL CJ: Let us come at it a different way then, Mr Morters. Regardless of what the respondent would now like to say, how can it in light of how the Court of Appeal has dealt with the matter, which is not to deal with the issue sought to be raised without at least a notice of contention. Whether or not a cross‑appeal is necessary, I have not quite got to.

MR MORTERS: Your Honour, the respondent is content to proceed on the basis that the Court should accept that a prosecutor has a discretion as to whether it should or should not play an interview. It is conceded that notwithstanding that the issue was raised in both Court of Appeal matters, the first ‑ ‑ ‑

KIEFEL CJ: Are you disavowing the ‑ or you are not intending to proceed with the argument that you outlined before lunchtime?

MR MORTERS: Your Honour, I concede that because no notice of contention has or will be filed ‑ ‑ ‑

KIEFEL CJ: It is not open to you.

MR MORTERS: ‑ ‑ ‑ it is not open to the respondent now to make that argument.

KIEFEL CJ: Very well, thank you.

MR MORTERS: But it will impact on the submissions that the respondent makes in relation to the reasons why this Court should conclude that it is appropriate for a prosecutor to have such a discretion and the nature of the interviews that are the subject of consideration in this matter perhaps very clearly highlight why it would be the case that that discretion should be permitted and her Honour Justice Bell was asking me some questions before lunch about whether ‑ ‑ ‑

KIEFEL CJ: Mr Morters, it might be better if you were closer to the microphone.

MR MORTERS: Sorry. If identification was in issue, would not the representations made by the accused in the matter of Singh be clearly statements against interest. In relation to that point, I can advise that in the Singh proceedings there was an agreed fact and that agreed fact is found at page 56 of the appellant’s further book of submissions. That agreed fact acknowledged that it was the accused that was in the taxi at all relevant times.

BELL J: Mr Morters, the matter I was raising with you in terms of admissibility is that the interview in the Singh Case contained material which amounted to an admission and that had consequences in terms of admissibility of the document under section 81. The circumstance that a matter may be not in dispute does not mean that the Crown is precluded from leading further admissible evidence going to that issue. It is a question of how you characterise the record of interview.

MR MORTERS: Yes.

BELL J: I had understood, up until you commenced your submissions, that it was not in issue that in each of these cases the interview was what is sometimes described as a mixed record of interview, meaning there are answers that amount to admissions and answers that are conceivably exculpatory.

MR MORTERS: Notwithstanding that the argument was made in the Court of Appeal in both matters that, for all intents and purposes, the interviews considered in light of the entirety of the representations that were contained in those interviews were exculpatory, I have taken on board what the Chief Justice said before lunchtime – no notice of contention is being filed and the respondent will content itself with an argument in relation to prosecutors’ obligations in relation to mixed statements.

GORDON J: Just so I am clear, do you accept on that analysis that we have two records of interview, the type described by Justice Bell which are admissible under section 81?

MR MORTERS: Admissible in the prosecution case, as her Honour Justice Kelly commented at paragraph [66] of her decision, which is found at – this is Singh, found at the core appeal book in Singh. So your Honours will see that her Honour accepted, at about line 10:

Clearly the interview contained some admissions . . . To that extent the interview is “mixed”, and it would undoubtedly have been admissible if tendered as part of the Crown case.

Then she goes on to talk about how it can be very difficult when looking at an interview such as this to form a view as to whether it is truly mixed, or whether it is exculpatory and she comes to the conclusion that:

it is, in substance, an entirely exculpatory account ‑ ‑ ‑

KIEFEL CJ: Her Honour comes to the conclusion that it does not matter, because the case turns upon whether or not a prosecutor, as a matter of fairness, must tender the question. And as I understand it, that is the argument that you are going to deal with.

MR MORTERS: Yes, your Honour. However, it is submitted that the Court would note that the extent to which an interview is truly inculpatory is a matter of degree by reference to the whole of the interview. So what we have in this instance is, at best, some very minor admissions ‑ ‑ ‑

GAGELER J: In which instance?

MR MORTERS: Singh.

GAGELER J: Thank you.

MR MORTERS: One of which, the question of identity, is dealt with by an agreed fact prior to a point in time when there was any argument.

EDELMAN J: So you are not suggesting that if there has been a videorecord of interview where a significant admission is made, “The murder weapon was located at my house”, that later on, admitting that as a fact somehow affects the admissibility of the videorecord of interview, are you?

MR MORTERS: It would not affect the admissibility, your Honour, but it could cause a prosecutor to form a view that, in the circumstances, it was not necessary for that interview to be tendered in the Crown case. If, for instance, police had gone to the house and found the murder weapon in the accused’s residence, then any admission in relation to that issue is hardly conceived as an admission because there is other evidence to demonstrate the existence of that knife in that house, for instance.

EDELMAN J: But how is one to tell whether or not the issue is going to be material until the defence starts running its case?

MR MORTERS: The primary reason for the objection to the admissibility of ‑ or the right of a prosecutor to make a determination as to whether it should be played in the Crown case, is an assessment of the entirety of the Crown case, and a determination as to the importance of the inculpatory statements, as opposed to the exculpatory statements which are excluded by virtue of the operation of section 59 of the Uniform Evidence Act.

Now, what we would end up with, if there was no such discretion, is in circumstances like the two instances that are before this Court where there are arguably very limited admissions which will assist the jury in a very minor way in relation to determination of the facts, is a circumvention of the prohibition on self‑serving statements because of a so‑called obligation on the Crown to lead those inculpatory statements, and as a consequence, because of a different line of authority, to also lead the exculpatory material, which is what the defendant is truly endeavouring to get before the jury without having to do so through the normal process of giving evidence.

So that is the objective that the respondent submits is behind the applications that are made for the admissibility of interviews such as these, and it is perhaps demonstrated in quite clear terms when one looks at the interviews in some detail and if one looks at the interview in Singh. The admissions that are contained in Singh have very little weight as far as determination of facts is concerned. It is principally the exculpatory material contained in that interview which is of significance for the defence. Now, my learned friend ‑ ‑ ‑

KIEFEL CJ: Are you saying ‑ given that you are, I take it, proceeding with the argument that you told us that you would address, which is whether or not a prosecutor is under a general duty, are you attempting to outline an argument that this is one reason which can be weighed against it or are you trying to argue that the prosecutorial discretion is wider than the appellant would admit?

MR MORTERS: By highlighting the weaknesses of the admissions contained in the interview as compared to the exculpatory material, what I am attempting to do is to convince your Honours that that is a good reason why a prosecutor should have a discretion as to whether an interview is tendered or not, because if that discretion does not exist ‑ ‑ ‑

KIEFEL CJ: It is argument against the general rule to the contrary. So you are saying, here is a reason why the prosecution should have an almost untrammelled discretion, because it is used by the accused for their ‑ it is self‑serving from the accused’s point of view.

MR MORTERS: It defeats the purpose of section 59, in effect. Now, my learned friend, Mr Abbott, has not, and nor has Mr Read, argued that the rule or the obligation on the prosecution could extend to wholly exculpatory statements, but one would find it difficult to imagine a situation where any interview was wholly exculpatory, and his Honour ‑ ‑ ‑

EDELMAN J: That is what Wigmore said 100 years ago and that sort of statement was made in the context of saying that is why statements to police are almost always admissible, because they almost always contain some form of implied admission.

MR MORTERS: The fact that somebody volunteers their name, for instance, might constitute an admission and, if it was held that there was an obligation on the Crown to tender interviews which contained any admission whatsoever, then no doubt there will be much debate about whether an interview was wholly exculpatory or whether it was mixed.

GORDON J: So in Soma, it talks about taking the good and the bad. Do you take issue with what is set out at paragraphs 29 to 31 of Soma?

MR MORTERS: I certainly do not take issue with the principle that flows from Soma that, if a prosecutor elects to play an interview or elects to rely on information contained in an interview, then the prosecutor must take the good with the bad and is obliged to introduce that interview in the Crown case. But in saying that, and I will take your Honours to this ‑ ‑ ‑

GORDON J: So are there limits on this discretion that you have described or is it untrammelled?

MR MORTERS: Your Honour, for practical reasons it is not going to be untrammelled. Where there are significant admissions contained within an interview, then one would expect that a prosecutor would always rely on those admissions. Where those admissions do not advance the prosecution case in any real way, shape or form and there is much exculpatory information in the interview, an explanation as to why one person assaulted another person, a claim that sets the curb that it was consensual, a whole range of different circumstances in which the explanation can be imagined, then the Crown should have a right to elect not to adduce such an interview.

I will get to Soma in a little bit, but my learned friends suggest that there is a line of authority which requires the Crown to adduce all material evidence. The respondent takes issue with that proposition and says that the authorities are clear that the obligation is to call all material witnesses and there is no authority for the proposition that that extends to adducing all material evidence and there is good reason for that and I will also make some arguments in relation to that in due course. For those reasons, information provided by an accused in an interview is very different to the information that can be conveyed by a material witness, even if that witness is called in the Crown case.

BELL J: Mr Morters, there is authority – and I am speaking here of authority that predates the Uniform Evidence Legislation – holding that the answers given by an accused to an investigating officer who puts, as it were, the prosecution allegations to that accused the answers are admissible because they represent the accused’s response to the allegation and that response at common law was considered relevant and it was admissible to prove what the accused said when first confronted.

MR MORTERS: Yes. That is authority which is expressed by I think the English Court of Appeal in the decision of Pearce.

BELL J: Yes.

MR MORTERS: But there are decisions at intermediate level which are clear in their determination that that rule does not apply in Australia and there is no authority at ‑ ‑ ‑

BELL J: Mr Morters, there may be decisions that in some Australian jurisdictions that approach has not been followed, but that would not be true of all Australian jurisdictions.

MR MORTERS: Well, I will endeavour to take you through all those authorities in the hope of convincing your Honours that there is no authority to the contrary except perhaps for the minority decision of his Honour Justice Peek in the decision ‑ ‑ ‑

GORDON J: I do not seek to dissuade you from your course, but is that not the opening sentence of paragraph 31 in Soma:

If the prosecution case was to be put fully and fairly, the prosecution had to adduce any admissible evidence of what the respondent had told police when interviewed about the accusation that had been made against him.

MR MORTERS: Your Honour is going to take me to Soma far earlier than I wanted to, but I will do that now.

GORDON J: No, do it in your order, but to say that there is no authority I think is a difficult proposition.

MR MORTERS: If your Honour goes to paragraph 31 of Soma at pages 522 and 523 of the joint book of authorities in Singh, that paragraph reads:

If the prosecution case was to be put fully and fairly, the prosecution had to adduce any admissible evidence of what the respondent had told police when interviewed about the accusation that had been made against him. To the extent to which those statements were admissible and incriminating, the prosecution, if it wished to rely on them at the respondent’s trial –

So the respondent’s submission is that Soma very clearly contemplates a discretion on the part of the prosecutor as to whether the prosecutor will or will not adduce an interview which contains exculpatory material, and Soma was specifically concerned with a situation where the prosecutor unfairly attempted, or did, cross‑examine in material from such interview after the prosecutor had elected not to lead that evidence in its case.

That line of authority which derives from Soma is very much confined to that situation, and every one of those cases acknowledges, including Mahmood arguably, depending on how one interprets the words that his Honour Justice Hayne used – every one of those cases implicitly acknowledges a discretion on the part of the Crown and prohibits the selective use by the Crown of information which is inculpatory only. The respondent takes no issue with the line of authority which derives from Soma and accepts that that is reproduced in section 81(2) of the Uniform Evidence Act. I am going to call it the Uniform Evidence Act, your Honour, for convenience. It is referred to as ENULA in the Northern Territory, but I hope your Honours will have no issue with that.

GAGELER J: Before you get to section 81, which is an exception to section 59, you go through section 55.

MR MORTERS: Yes, relevance.

GAGELER J: Yes. Now, to return to the question asked by Justice Bell, do you accept that the account of events given by an accused at the time of first being interviewed and confronted by the Crown case is relevant on the basis that it is what the accused says about the facts in issue?

MR MORTERS: Your Honour, the short answer to that is no. The respondent would point to the authorities from intermediate courts which reject the line of authority expressed in Pearce that somehow or other that such statements should go into evidence because there is an expectation of reliability in relation to such statements, and the whole argument is underlined by this concept of reliability and it is because statements against interest ‑ because of the nature of statements against interest that, for policy reasons, the legislature has accepted that such statements should be admitted because of the likelihood of reliability.

GAGELER J: I am just asking you about relevance at the moment.

MR MORTERS: I know, I have gone off on a tangent, I am sorry, your Honour, but ‑ ‑ ‑

GAGELER J: Are you saying that if the statement ‑ ‑ ‑

MR MORTERS: Relevant, yes.

GAGELER J: You are accepting that it is relevant?

MR MORTERS: Relevant, yes, but not necessarily admissible because they are hearsay statements so excluded by section 59, and as his Honour Justice Grove conceded in the decision of Rymer, section – because I have sort of been taken out of ‑ ‑ ‑

KIEFEL CJ: Well, do you want to go back to your – the way in which you want to work through the cases?

MR MORTERS: I will get to that in a little bit. As far as your Honour’s comment about relevance is concerned, the respondent concedes, yes, the version of events provided by the accused at any point in time would meet the test of relevance under section 55.

GAGELER J: Thank you.

MR MORTERS: The question then becomes whether it is excluded for another reason, and section 59 would exclude it because it is clearly hearsay, and if it is excluded because of section 59, is there an exception to the exclusionary rule and the answer would be, under the Uniform Evidence Act, no, because it is not an admission and there is nothing within the Uniform Evidence Act which covers the sort of situation which is canvassed in Pearce.

NETTLE J: So, that is to say 81(2), in effect, has excluded the old common law rule of first opportunity overcoming the fact that it was hearsay.

MR MORTERS: Yes.

GAGELER J: What about section 190 which would allow a defendant if so advised by his or her legal practitioner to waive the application of the hearsay rule?

MR MORTERS: I think waiver requires both parties to consent, your Honour – both the parties consent.

GAGELER J: I am looking at subsection (2), in a criminal proceeding a defendant’s consent. So, you say it is a matter of choice for the prosecutor.

MR MORTERS: It is a way to avoid the complications in some instances of technical rules by both parties agreeing that such evidence is admissible perhaps, but that would not have any application in relation to this situation.

EDELMAN J: But a situation you are talking about is effectively a “no comment” type interview, an interview where not even an implied admission of a minor character can be discerned from the record of interview.

MR MORTERS: I struggle to conceive of such an interview, but ‑ ‑ ‑

EDELMAN J: That is the situation you are talking about.

MR MORTERS: That would be an interview in which - well, arguably there would be no relevance to such an interview in any case, and I think that really, that is consistent with the decision of the High Court in Petty & Maiden.

EDELMAN J: So, in fact, putting aside that tiny category that may in fact be situations of no relevance anyway, every other record of interview we are talking about in reality will involve some form of implied admission. So what your submission is about, it is not really a submission about admissibility, it is a submission about prosecutorial discretion in relation to evidence which is admissible.

MR MORTERS: Well, I would qualify that, your Honour, because the prosecutorial evidence that is admissible is the admission that is made, and it is only by virtue of the fact that the accompanying representations arguably put the admission into context ‑ ‑ ‑

EDELMAN J: But it is always - always the whole thing is needed for the context. There is never going to be a record of interview where any of the admissions are acontextual.

MR MORTERS: I am not arguing against the obligation upon the Crown, as described in Soma, and recognised in section 81 of the Uniform Evidence Act. If the interview is to go in the whole of the interview must go in, subject to any discussions between the parties about any inadmissible parts. But the effect - as your Honours just said a moment ago, the consequence would be that nearly every interview would be characterised as at least a mixed interview, and that would oblige the Crown to adduce evidence of all such interviews in the Crown case, which would, in effect, abolish the rule as to prior consistent statements with respect to an accused, which is clearly contrary to the policy behind section 59 of the Uniform Evidence Act. Now, perhaps I might ‑ ‑ ‑

BELL J: I think the New South Wales Court of Criminal Appeal might have taken a different view in that respect.

MR MORTERS: Which case, your Honour?

BELL J: Was it in Rymer?

MR MORTERS: I will go to Rymer in due course.

BELL J: Yes.

MR MORTERS: Perhaps I will start with the - what I have said is that the appellants rely predominantly on two lines of authority - that line of authority which obliges the Crown to adduce all material evidence, which is their proposition - and I just want to take your Honours through those cases to support an argument that it does not extend to all material evidence but only concerns all material witnesses.

So the first of those cases is Richardson v The Queen (1974) 131 CLR. All these references are to the joint book of authorities in Singh. It is at pages 576 to 583 of that book. The issue that was canvassed in that decision was the failure of the prosecution to call a witness who was present at the time of offending. The Court recognised - pages 121 to 122, the book is 581 to 582.

The Court recognised a prosecutor’s discretion not to call a witness who was present because of an assessment that she lacked credibility and was biased towards the accused. The discretion would only constitute a ground for setting – this is at the very bottom of page 581 – aside the conviction:

if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice.

So that is the first in the modern line of authorities which deals with the prosecutor’s obligation to call material witnesses. Your Honours might recall that in that case, there was a young lady who was present at the time that the assault was alleged to have been committed against the police officer, and investigations by the prosecutor had legitimately caused him to form the view that that witness was not a witness of truth, not a credible witness. The prosecutor elected not to call that witness in the Crown case, and the High Court said that that was a legitimate basis for not calling that witness, and no miscarriage of justice had arisen in those circumstances.

The next case was the decision of Whitehorn v The Queen (1983) 152 CLR 657, and that is found at pages 589 to 623 of the further book of materials. That concerned a complaint against the prosecution for failing to call the eight‑year‑old complainant in a sexual assault complaint ‑ and really the prosecution relied on admissions made by the accused in his interview. The Court found there was a miscarriage of justice. His Honour Justice Deane at page 664, or page 596 of the book, says at about halfway down the page, the paragraph starting:

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. Whether or not their names appear on the back of the indictment or information, all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point.

Further down the page, about seven lines below that:

Among the considerations which may justify the Crown in refraining from leading evidence from a particular witness is that the evidence which he or she would give is plainly untruthful or unreliable.

So even with respect to witnesses that the Crown is proposing to call, the Court recognises the discretion on the part of the prosecutor not to call such witnesses. If we move to - firstly, Whitehorn, is consistent with the decision of the New South Wales Court of Appeal in R v Kneebone. In that case it was held that – the relevant passage is at about page 1108 of the further book of materials. The question was whether failure to adopt a – it was held that a miscarriage of justice arose in circumstances where a prosecutor failed to engage in a procedure to determine for themselves the reliability of a material eyewitness, such as conferring with the witness or engaging in some sort of proofing. That was held to be improper for the prosecutor to make that decision, exercise that discretion without first making those appropriate inquiries.

Then, the last in the series of cases I will refer your Honours to is Apostilides. In that instance, the accused was charged with rape. The Crown elected not to call two witnesses who were present during the evening leading up to the alleged offending. The Court held that generally a prosecutor will call all material witnesses and a decision not to call a witness will only be justified by reference to the overriding interests of justice. I am taking your Honours to page 509 about the top of the page:

The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it –

I can take you to the very paragraph at the top of the page where the Court says:

A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence –

Now, the word “evidence” is used, but it is quite clearly referable to the obligation to call a witness:

will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence.

So if we analyse that line of authority, the appellant asserts that there is a general obligation placed upon the prosecution to adduce all relevant evidence. The respondent’s submission is that that is not what the authorities establish.

BELL J: Mr Morters, as I understood it, I did not take Mr Abbott or Mr Read to be under a misapprehension that Richardson, Apostilides and Whitehorn concerned cases respecting the alleged failure to call a witness, but I understood the point being made to be by analogy the obligation on the prosecutor in the ordinary case is to tender the record of interview if it is admissible because it serves the same obligation of fairness, that is, it is setting before the court the account that the accused person made when confronted with the allegation, and I understood counsel both for Mr Nguyen and Mr Singh to accept that that ordinary obligation is subject to exceptions in the case of demonstrable unreliability as the joint reasons in Apostilides suggest at CLR 576 or in the case of an interview coming within the third category in Pearce where plainly a story has been prepared to place before the investigating police.

MR MORTERS: Your Honour, the authorities, it is submitted, that I have just referred to recognise a discretion on the part of a prosecutor not to call a material witness. That discretion can only be exercised when the prosecutor makes appropriate inquiries to satisfy themselves with respect to the reliability of the evidence or the credibility of the witness. Those opportunities, those safeguards in not putting before the jury evidence which does not meet those standards of truthfulness are not available to a prosecutor when one is talking about the accused. There is no opportunity for a prosecutor to conference with an accused to form a view about whether the accused ‑ ‑ ‑

EDELMAN J: Your submission is really that the principle that comes from these cases has to be confined to witnesses.

MR MORTERS: Absolutely, your Honour.

EDELMAN J: In R v Mallard there was potential evidence of a drawing that had been done by an expert witness which showed that a hammer could not have been the murder weapon which was part of the Crown case. Are you saying the prosecution would have had a discretion as to whether or not to tender that evidence because it is not evidence that is given by a witness. It is a drawing that has been done.

MR MORTERS: But it is a drawing that is prepared by a witness?

EDELMAN J: Yes.

NETTLE J: Hearsay evidence.

MR MORTERS: So that puts it in the category of Apostilides and those other cases. I am not familiar with Mallard but was Mallard principally concerned with failure to disclose? I am not suggesting that there should be any withholding of information in the disclosure process. It is simply a question about whether the prosecutor should be allowed a discretion in relation to the tender of information supplied by the accused.

KEANE J: What about CCTV that casts some doubt on the accuracy of the principal witnesses for the prosecution? Would a prosecutor be acting within the bounds of his discretion or her discretion in failing to adduce the CCTV footage in evidence?

MR MORTERS: Absolutely not, your Honour, absolutely not acting within ‑ ‑ ‑

KEANE J: So it does not apply just to witnesses?

MR MORTERS: No, it does. They would be acting contrary to their obligation of fairness if they did not adduce evidence and that CCTV footage would be produced by a witness. A person would be called subject to agreement with the other party to provide evidence that they downloaded CCTV footage and provided it to a police officer.

KEANE J: In that sense a record of interview is produced by a witness, too.

MR MORTERS: Yes, but the representations are representations made by the accused and those representations are hearsay. They are out‑of‑court statements relied on for their truth. Those representations are quite obviously - well, certainly the exculpatory representations are not accepted as being reliable or credible by the prosecutor because if they were the trial would not proceed. The prosecutor has an obligation to only proceed in circumstances where the prosecution believes that there are reasonable prospects of success.

EDELMAN J: I think the difficulty may be this attempt to think of a videorecord of interview as being able to be filleted into statements which are exculpatory and statements which are inculpatory rather than as being an entirety, all of which is context for itself.

MR MORTERS: That was the initial argument that I was proposing to advance. I will simply submit that if one looks at each of these interviews, particularly the interview in Singh, where identification is not an issue, and if one analyses the various representations in Singh, there are, at best, some very minor statements made by the accused which could constitute admissions in accordance with the very wide definition that is provided for that term in the dictionary about what constitutes an admission and the various interpretations that have been held about what constitutes an admission.

As I said to her Honour Justice Bell before, the definition of “admission” is a statement which is against interests at the time of the proceeding. So it differs from English law, where one assesses whether a statement is an admission at the time of making. So at the time that ‑ ‑ ‑

BELL J: Mr Morters, is this a submission that an accused charged with committing an armed robbery on a Kentucky Fried store in Kingston, who said in an interview “I was in the store at the time”, that may not be an admission depending upon circumstances prevailing at the trial, including whether, for example, there is an agreed statement of fact.

MR MORTERS: Or there is a CCTV footage ‑ ‑ ‑

BELL J: I see.

MR MORTERS: ‑ ‑ ‑ which clearly shows that the accused was in the store at the time, or there is an abundance of evidence from eyewitnesses that clearly demonstrate that the accused was in the store at the time.

BELL J: So the presence of eyewitnesses in that illustration would mean it would not be right, as a matter of law, to say that the answer, “Yes, I was in that Kentucky Fried store at Kingston at the time of the offence”, constituted an admission. That is your submission.

MR MORTERS: I am very reluctant to make that submission, given that I have disavowed any intention to make that argument because, arguably, no cross‑appeal has been filed. But one can look at in a different way. If it is an admission it is a bare admission, which really advances the prosecution case very little, and what is most likely much more important are all the exculpatory statements that are contained in that interview.

If one looks at the interview in Singh, one will see that the majority of the responses in Singh are a denial of any knowledge of the offence, an assertion of being very drunk at the time, an assertion of not seeing the knife presented until the knife was used to threaten the taxi driver, not realising that the nephew had any intentions whatsoever of engaging in that conduct, and not assisting them in any way when they fled from the taxi. So it is, at best, a very limited admission which advanced the prosecution case not one bit because of the agreed fact and the CCTV.

EDELMAN J: When you say advance the prosecution case, is that just another way of saying advances a case theory which is attractive to the prosecutor?

MR MORTERS: No, your Honour. It is not saying that and I am not shying away from the fact that the prosecutor has an obligation to adduce all evidence, whether it is to the advantage of the ‑ all admissible evidence, whether it is to the advantage of the prosecution or the advantage of the defence. However, the exculpatory statements are otherwise inadmissible because they are prior consistent statements and they are excluded by virtue of section 59.

NETTLE J: Can I put this to you. Traditionally in England and also in Victoria, which followed the practice, records of interview were let in as a matter of practice and in effect as an exception to the hearsay rule upon the basis that they represented, amongst other things, the first response or first opportunity of the prisoner to respond. That sort of thinking, it might be thought, informed perhaps some of Justice Hayne’s reasoning in the cases that we went to. Granted, section 81 of the Evidence Act now determines the relevant exception to hearsay, but does it overcome the underlying principle which informed that old approach to the law or change it?

MR MORTERS: According to his Honour Justice Grove in Rymer, it does. To address that issue now, if your Honour goes to pages 1287 and 1288 of the further book of materials, I will talk about the collection of cases – Familic, Reeves, Astill, Keevers – which in submissions the appellants identify as being authorities for that position.

At pages 1287 and 1288, where his Honour is analysing the trial judge’s decision not to allow – sorry, to admit the prior consistent statements on the basis of the application of section 66 of the Uniform Evidence Act, and he rejects that proposition and then he turns to its admissibility by virtue of the line of authority that talks about it being a spontaneous response to being confronted by a police officer. He has referred to authorities both in England and in New Zealand and at the bottom of the page at paragraph 52 he says:

Irrespective of the differences that can be noted in the above it is clear from the unequivocal terms of s 59 that the common law has been subordinated to the statute. The express language of s 59 removes the potential for preservation of any different common law rule such as contemplated by s 9 which provides ‑ ‑ ‑

NETTLE J: I do appreciate that. I am sorry; I may have misstated what I was trying to drive at. Granted, the Act is the sole expression of exceptions to the hearsay rule and, indeed, it is the sole expression of the hearsay rule now. The principle which informed the admission of the record of interview at common law was one of, in effect, fairness because it represented the first response of the prisoner to the allegations put against him.

In deciding whether or not it is necessary in order to have a fair trial but a prosecutor subject to the sorts of exceptions which have been spoken about ought ordinarily to tender a record of interview which meets the requirements of section 81(2), is that not a relevant consideration, that underlying principle which used to inform the common law approach?

MR MORTERS: Well, the interpretation that the respondent submits is to be taken from what his Honour Justice Grove said in that decision is that ‑ ‑ ‑

GORDON J: What about paragraph 59?

BELL J: Perhaps paragraph 64, the summary, sub (b).

GORDON J: It picks up 59.

MR MORTERS: There is no doubt about it that his Honour Justice Grove was of the view that it did result in an unfairness to the accused because the Crown was electing not to play an interview. And the respondent does not agree with the general view that is expressed by his Honour Justice Grove in that decision.

GORDON J: Just so I am clear, I am a bit confused. Is it the position then that you accept part of Justice Grove’s decision? You accept the statutory analysis but contend that his Honour’s view about fairness and the approach to fairness in the context of the Evidence Act is not available to the Court?

MR MORTERS: He quite obviously ‑ ‑ ‑

GORDON J: No, I am asking you what your position is.

MR MORTERS: Yes.

GORDON J: That is your submission?

MR MORTERS: Yes, that is the submission.

GORDON J: So I am to take 52 and 53 of Justice Grove’s decision, but ignore 59 and 64, especially subparagraph (b)?

MR MORTERS: But his Honour Justice Grove found another basis for admission.

BELL J: A basis consistent with the Evidence Act?

MR MORTERS: Well, which no longer exists because of amendments to the Evidence Act – and also which has been criticised in subsequent judgments such as his Honour Justice Kourakis in Barry. So his Honour concluded that the plea of not guilty by an accused constituted evidence which could be supported by admission under the credibility rule. It is quite a complicated, obviously – I mean, it is hard to explain ‑ ‑ ‑

BELL J: It is simply, Mr Morters, to suggest to us that Justice Grove’s decision in Rymer, which is reported at (2005) 156 A Crim R 84, is supportive of your argument, is a highly selective reading of Rymer.

MR MORTERS: In one respect only, your Honour, and very powerfully supportive, because his Honour is quite clearly trying to – is quite clearly exhaustively examining the relevant provisions in order to determine whether the interview is admitted, in circumstances where he is acknowledging what he believes is the fairness of that interview being tendered in the Crown case.

He cannot do so under section 59 ‑ he concedes he cannot do so under section 59, because it is put paid to the common law provision that your Honours are referring to about the tender of prior consistent statements that are made in certain circumstances, those reactionary to being challenged by a police officer.

NETTLE J: And if I may say so, with respect, his Honour is undoubtedly right about that. But the question remains whether the underlying principle of fairness which informed the common law exception ought be regarded as informing the exercise of prosecutorial discretion in not putting before the jury the prisoner’s first response in the record of interview.

MR MORTERS: Well, your Honour, it is ‑ ‑ ‑

NETTLE J: And if not, why not? What is it that has changed, essentially? Granted it is now under an Act that we determine exceptions to the hearsay rule, rather than at common law, but what is it that has changed in principle in determining whether it is unfair by the Crown not to tender the record of interview?

MR MORTERS: It is not a question of fairness, your Honour. It is a question of admissibility.

NETTLE J: We have got the admissibility. It is admissible under 81(2), ex hypothesi as a mixed record of interview, done.

MR MORTERS: No, well, your Honour is talking about – I am not conceding that it is admissible under section 81(2) ‑ ‑ ‑

NETTLE J: Assume that it is.

MR MORTERS: We are talking about a situation where an accused is confronted by the police and he says, I did not do it, it was not me, I had nothing to do with it. That is the case that was being analysed in Pearce.

NETTLE J: All right.

BELL J: But that is not either of these cases. These cases come to this Court upon, as I understood it, an acceptance that the interviews contain some admissions and some exculpatory statements. So, we are in the field of admissibility and the issue that Justice Nettle raises with you is given admissibility why in the ordinary exercise of discretion, as a matter of fairness, would the prosecutor not hinder the interview.

MR MORTERS: Because section 59 of the Act very clearly excludes prior inconsistent – prior consistent statements as hearsay and one can conclude from the clear language of section 59, as his Honour Justice Grove did, that it does not permit the admissibility of such statements, so as a question of admission there is no scope for arguing their admissibility because of the common law rule that it was an immediate response.

NETTLE J: No, that is true, that is undoubtedly true, but the question is whether it is admissible under 81(2), and ex hypothesi it is, and the question then is whether the principle which informed the common law’s approach to formulating the exception to the hearsay rule which it allowed in relation to records of interviews ought be regarded as informing the exercise of prosecutorial discretion not to put the record of interview before the jury.

MR MORTERS: The appellants have not argued the application of that common law principle in relation to either of these cases.

EDELMAN J: But what the appellants have argued is they have argued for a general principle that interviews generally get put before the jury by the prosecution subject to a limited number of exceptions.

MR MORTERS: I will go through the authorities now perhaps in an attempt to convince your Honours that that is not what the authorities do. So, I have started with the authorities about requiring the prosecutor to call a witness. So, I will move on to some of the authorities that the respondent relies upon. So, I have already talked about Soma and the submission in relation to Soma is that the Court quite clearly recognises a discretion on the part of the prosecutor as to whether it will or will not play an interview if the prosecutor elects to do so. What Soma is all about is fairness in circumstances where there is an attempt to be selective in relation to the information that is put before a jury. There is no challenge to that line of authority that such conduct would constitute a miscarriage of justice. Mahmood was a case where ‑ ‑ ‑

KIEFEL CJ: But it would not – you concede that the example of Soma would amount to a miscarriage of justice, that would not be because of the subjective intention of the prosecutor to be selective, it is because of the effect, is it not, unbalancing the evidence?

MR MORTERS: To allow the jury only to hear those parts of the interview which are incriminating without putting them into context ‑ and Soma very, very clearly demonstrated the unfairness of that because in Soma the other statements very much put into context the fact that the accused was not making admissions – sorry, was not making admissions in his interviews, those admissions had to be taken in the context of the other statements that he had made. Mahmood is probably even more starkly demonstrative of that point. That was a situation where the prosecutor ‑ ‑ ‑

KIEFEL CJ: You mean it could lead the jury into misunderstanding, a misunderstanding of the correct narrative?

MR MORTERS: Yes.

KIEFEL CJ: That is we are saying?

MR MORTERS: Yes.

KIEFEL CJ: Could it also lead a jury, if the record of interview - a mixed record was not - a record at all was not put before the jury - lead the jury to perhaps misunderstand whether or not the accused had said anything?

MR MORTERS: That has been raised as a justification for ‑ ‑ ‑

KIEFEL CJ: It is an example of the first opportunity, a question which Justice Nettle has raised with you, I think.

MR MORTERS: The cases where that prospect, the prospect that the jury might speculate because they do not hear what an accused said when spoken to by the police, is referred to in some of the cases I am going to go to, from New South Wales - Astill, Reeves ‑ ‑ ‑

KIEFEL CJ: Astill ‑ yes.

MR MORTERS: Yes, those cases. But it is in circumstances where the accused is trying to exclude, or trying to argue a miscarriage of justice because the Crown has led evidence of what was said immediately after being taxed by police and generally the statements that have been made have been in the context of “I do not want to say anything until I speak to my lawyer”, or in, I think it is Astill’s Case, the third instance, a shrug of the shoulders when he is asked to provide a version of events by the police officer.

I must say, quite surprising, at least to myself personally, the Court of Appeal ruled in those instances that notwithstanding the decision by the High Court in Petty v Maiden that was not an exercise of the right to silence and the prosecutor was entitled to lead information about the response that was given, notwithstanding that it acted contrary to the interests of the accused.

KIEFEL CJ: Which case were you going to next?

MR MORTERS: I was going to go to Mahmood. That was a situation where the accused was accused of the murder of his wife. He provided a lengthy interview with police on the day of the murder and a walkthrough re‑enactment one week later. The police tendered the - so it is at paragraph 37, page 455 of the further book of materials in Singh:

The prosecution tendered the interview with police. The defence tendered a portion of the walkthrough recording in cross‑examination of a police witness. The prosecution objected to the whole of the tender of the re‑enactment, and then the prosecutor made submissions to the jury that that part that was cross‑examined in demonstrated a lack of emotion on the part of the accused when he was engaging with the police about the death of his wife.

After those submissions were made, the defence sought to tender the whole of the re‑enactment to show the full extent of the emotional reaction by the accused. The trial judge refused that application and the plurality held, in that matter, that it was not sufficient that the trial judge gave a direction to the jury to disregard - sorry, the direction that the trial judge gave to the jury was not sufficient, and the trial judge should have told the jury that they should have disregarded the submissions made by the prosecutor about what observations - about what inferences they could draw from the observations made about lack of emotion.

His Honour Justice Hayne’s judgment is found at paragraph 34, I believe - it starts at 33, so at paragraph 34 his Honour Justice Hayne says that the accused made inculpatory statements in the re‑enactment which were “both relevant and admissible”:

If an accused has made inculpatory statements that are admissible in evidence, the prosecution should ordinarily lead evidence of all of those statements.

So again, it is a Soma‑type situation where there has been selectivity in relation to the presentation of the out‑of‑court statements made by the accused. That is at paragraph 39. Also at paragraph 39 he says:

it is not open to the prosecution to pick and choose between those statements . . . And in leading evidence of out‑of‑court assertions which the prosecution alleges are inculpatory, the prosecution must take the out‑of‑court assertion as a whole; the prosecution “cannot select a fragment and say it bears out their case, and reject all the rest that makes against their case”.

Again, a clear reinstatement of the principle in Soma. He said that – I am sorry, I withdraw that.

BELL J: What about his Honour’s discussion of the Western Australian decision – I am sorry, of the decision of the Queensland Court of Appeal in Callaghan?

MR MORTERS: Yes.

BELL J: At page 409 of the report, paragraph 41 where his Honour says:

The decision in Callaghan does not establish that proposition and it is a proposition that is not consistent with the proper presentation of the prosecution case.

It is really the next sentence, Mr Morters.

MR MORTERS: Yes, it is one sentence in a collection of paragraphs which, as her Honour Justice Kelly says in the Court of Appeal decision of Singh at paragraph [54] needs to be taken in the context of the matter under consideration. He was dealing with the situation where the prosecution had opposed the introduction of exculpatory material contained in the same incident of questioning as other material which it relied upon as being inculpatory.

It should be seen as merely a re‑statement of the well‑established principle that if a prosecutor introduces inculpatory out‑of‑court material, it is obliged to adduce all material including exculpatory parts, and that may include statements made at a different time if there is a connection between the two statements.

BELL J: His Honour says nothing of that sort. The statement is on its face not confined in that way.

MR MORTERS: Well, your Honour is focusing perhaps:

If there is admissible evidence available to the prosecution of out‑of‑court statements of the accused that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence.

One interpretation of that, your Honour, in circumstances where his Honour was considering the fairness of the way the prosecutor behaved is that that is referring to an obligation to lead both the good and the bad, if there is an election to lead – to rely on the bad.

BELL J: Yes, I understand.

MR MORTERS: Of course his Honour Justice Hayne was on his own in relation to that decision. It was not a position that was adopted by the plurality. So the submission is that your Honours should accept the conclusions reached by her Honour Justice Kelly at paragraph [54], core appeal book page 83, that that one sentence needs to be taken in proper context, and that is as high as the appellant’s case goes in its argument that there is an obligation on the prosecution which extends beyond the calling of – or, sorry, the adducing of out‑of‑court statements by the accused.

Now, going to the Court of Appeal decision in Victoria of R v Rudd (2009) 23 VR 444 at pages 1248 to 1277, this really deals with the suggestion that there is some sort of practice on the part of prosecutors in Victoria and, even if it were a practice, the respondent would submit, well, practice is one thing, law is another, and just because a certain jurisdiction has a practice does not mean it is right.

NETTLE J: That is undoubtedly correct, but it is the dissenting judge in I think Singh that points out that whilst a practice is not the same thing as the law, it does say something about the fairness involved in the exercise of prosecutorial discretion, which is what I was endeavouring to put to you, that is to say, just as the common law in its wisdom conceived of it as being a matter of fairness to put before the jury the prisoner’s first response, so too might it be thought that, albeit under section 81(2) of the Evidence Act that a modern day prosecutor would, as a matter of fairness, put before the jury the prisoner’s first response.

MR MORTERS: The situation that developed as a consequence of Pearce – and I will get to this in a little while – caused enormous difficulty for trial judges in instructing juries because it was supposed to be accompanied by a direction that the truthfulness of what was conveyed in the exculpatory representations was not to be relied upon. It was only to be relied upon for the purposes of assessing the response made by the accused when first taxed. That created enormous difficulty in trials in trying to properly explain the differentiation between those two processes of analysis. That is a differentiation that cannot exist ‑ ‑ ‑

EDELMAN J: Except that differentiation would only exist if that is the basis for which it is admitted. But here, I think what Justice Nettle is putting to you, is assume that it is admissible – if one of the fairness considerations is the first opportunity‑type rule there is no need for a direction to the jury as to the use in which they need to give it – the videorecord of interview. It is just one of the underlying reasons for the exercise of prosecutorial discretion.

MR MORTERS: No such direction could be given because of the operation of section 60 of the Uniform Evidence Act, which says that if it is in, it is in for all purposes.

NETTLE J: But, of course, you would direct them that it is not sworn, and that they should take that into account in assessing its weight.

MR MORTERS: The Mule direction, yes.

BELL J: Mr Morters, it might be noted that the Court of Appeal of England and Wales has moved away from that position in Pearce, in a case of Duncan (1981) 73 Crim App R 359, recognising that the distinction had subtleties for a jury that were difficult to accommodate so that there is – the Pearce direction is no longer given.

MR MORTERS: Yes.

BELL J: The practical answer here, no doubt, is that a Mule v The Queen direction is given in such cases.

MR MORTERS: Yes. I will get to Mule in a little while, your Honour.

BELL J: Yes.

MR MORTERS: So going back to Rudd, that was an allegation of recklessly endangering life. The accused fired a shotgun - is alleged to have fired a shotgun though the window of a house occupied by the RSL manager who had banned him from the hotel. The Crown played some phone calls between the wife and the accused that the accused made from the remand centre in the month following his arrest. The trial judge ruled that the Crown did not have to play phone calls which were exculpatory, only those which were inculpatory in nature.

The Court of Appeal held that the calls, the inculpatory calls were admissible as admissions, but the Crown was obliged, for the reasons expressed in Soma, to play the exculpatory material as well. His Honour Justice of Appeal Redlich clearly considered the issue of the obligation by the Crown to lead the evidence of exculpatory statements in circumstances where they had elected to lead inculpatory material – and that is at paragraph 58, page 1262 of the further book of materials:

In the present case, it was the case advanced by the prosecution that rendered admissible the self‑serving statements.

So that in itself implies a discretion:

What occurred here is an instance of the general rule that the nature of the admissions, and the manner in which the prosecution seeks to prove them, may engage the exception to the hearsay rule, so as to permit the introduction of exculpatory statements which place the admissions in their proper context or qualify or explain them.

At paragraph 62 he says:

Once the prosecution had resolved to introduce some parts of these conversations –

Again, implies a discretion:

then . . . the prosecution was obliged to tender such portions of the conversations as the defence requested be tendered. As a matter of fairness, the prosecution should have adduced such evidence as part of its own case.

So his Honour is clearly recognising that this obligation of fairness flows from the decision by the prosecutor to introduce inculpatory material, even if the exculpatory material does not happen at exactly the same time as the inculpatory material.

GORDON J: I do not seek to parse this judgment but at paragraph 59 it seems as though Court of Appeal Justice Redlich puts it on two bases. He deals with the fairness point and then he deals with it in the last sentence:

It is, furthermore, in accordance with the duty of the prosecutor to lead all relevant evidence ‑ ‑ ‑

MR MORTERS:

It is, furthermore, in accordance with the duty of the prosecutor to lead all relevant evidence so as to give the jury a complete and fair understanding of the events upon which the prosecution relies.

Yes, there is an argument to be made that what his Honour was saying was there is some obligation but, quite equally, there is an argument to be made that he is recognising a discretion on the part of the prosecutor as to whether it tenders inculpatory material and, if it does tender inculpatory material, the unfairness flows from any attempts to be selective and to exclude the exculpatory material.

That is where the issue of fairness arises, not in the decision by the prosecutor to elect not to adduce incriminating material because the effect of introducing incriminating material will cause the jury to receive evidence which is otherwise clearly inadmissible.

NETTLE J: The one Victorian case which probably does come closest to bearing directly on it is R v Su. Are you going to take us to that?

MR MORTERS: I was not going to take you to Su because that is quite a bit before ‑ ‑ ‑

NETTLE J: It is common law.

MR MORTERS: Yes.

NETTLE J: Which comes back to the point we have been parrying around – namely, that the common law’s approach to the matter was informed by the idea that as a matter of fairness the Crown should put the first response before the jury.

MR MORTERS: Well, qualified by the circumstances of the making of that first response. If that first response is made at a point in time quite some time after the incidents have occurred, in circumstances where the accused would be, for instance, aware of the allegations, then why does that make – I am not asking your Honours a question but I am just putting it rhetorically – those exculpatory representations any more credible than anything else the accused might say out of court.

It is the fact that a statement is against interests which gives it a special significance. It is that fact, and I think in the submissions I refer to the ALRC report No 26, which talks about why it is that such statements have a particular characteristic of reliability.

KIEFEL CJ: I am not sure exactly where we are in relation to your outline of argument and I am not sure how many further cases you are taking us to. Conscious of the time, of course, and the need to allow for a reply ‑ ‑ ‑

MR MORTERS: I will move on as quickly as I can, your Honours. As far as any practice is concerned, the Crown’s submission is that it is not established in Rudd, as is often claimed. Similarly, it is not established in those series of cases - Astill, Keevers, Familic and Reeves - because they are predominantly about the objection by the defence to the Crown leading evidence about the first response by the accused which is against the interests of the accused. “I want to exercise my right to silence” – well, that is admissible because it is a response, it is not silence, but the judge has to give a direction immediately after such evidence is led so that the jury does not use it impermissibly. One might even think that it is not a legitimate basis for admission, but that is not what has occurred in those four cases.

Now, that is a very different – to use those cases as authority for the proposition that in New South Wales there is a general acceptance that the prosecutor will play interviews is not a correct representation of what transpires in each of those cases. I will not take your Honours through the facts because I appreciate the time.

In Helps (2016) 126 SASR 486 - it is at 1008 to 1092, his Honour Justice Peek referred to those - those New South Wales cases supported the proposition that there is a general obligation placed upon the prosecution to tender as part of its case records of interview conducted with the police - that is at pages 290 to 300. The Crown, with greatest respect, says that that is not what you would derive from a close analysis of those cases.

Her Honour Justice Kelly refers to that in paragraphs 34 to 45 of the appeal decision in Singh which is found at core appeal book 70 to 77. Her Honour Justice Kelly at paragraph [37], page 72 of the core appeal book, says this is a question of admissibility and fairness is not a basis for admissibility. Admissibility is determined by a three‑stage test: is the evidence relevant; is the evidence otherwise inadmissible because one of the exclusionary rules, if not excluded should it be excluded on a discretionary basis because of any unfairly prejudicial effect.

That is the way that this should be analysed and the reality is that the exculpatory material is not admissible, but only becomes admissible because of this, with the greatest respect, convoluted argument that the prosecution is under some obligation to play the incriminating material, which results in all the exculpatory material going in which the respondent submits does not advance the interests of justice one little bit because it circumvents the rule against the admission of hearsay evidence, as far as the accused is concerned.

Dyers is not authority for the – the case of Dyers v The Queen (2002) 210 CLR 285 does not - is not really dealing with this situation whatsoever. It is focused on the Crown’s obligation to call all material witnesses, consistent with the decision in Apostilides. His Honour Justice Callinan at paragraph 118 says:

The obligation of the prosecution is to call all material witnesses . . . All the available admissible evidence which could reasonably influence a jury on the question of the guilt or otherwise of an accused is capable of answering the description of “material”.

But he does not say there is an obligation on the prosecution to adduce all material evidence, just to call all material witnesses. Obviously that case is all about the inappropriateness of an inference being drawn in circumstances where the defence fails to call a witness.

Flowers v The Queen (2005) 189 FLR 423, which is a Northern Territory decision, his Honour Justice Riley reviewed the authorities and concluded that there was no basis for admission of self‑serving statements by an accused, paragraphs 37 to 40 and he referred to the decisions of Callaghan, S v The Queen, and a variety of other decisions, but no doubt my learned friends would say that case is distinguishable because what it was talking about was an interview which was exculpatory in nature.

However, his Honour the Chief Justice in Flowers at paragraph 3, page 731 of the further book of materials, says, when he is characterising the interview, the following:

Speaking generally, the interview was entirely exculpatory -

which picks up on the point that your Honour Justice Edelman was making before that it will almost always be the case that it will be very difficult to distinguish when an interview is not mixed in some way, shape or form.

His Honour Justice Southwood deals with this Pearce issue directly. This is at pages 1187 and 1192. He talks about the authorities deriving from the decision in Pearce, that spontaneous statements made when a person is first challenged are admissible because of claimed degree of reliability about such statements, but his Honour Justice Southwood goes on to identify the long list of authorities in courts across the country that have rejected the proposition that the statement of an accused when first challenged is admissible. That is found at paragraph 54.

He upholds the appeal on the basis that there was an unfairness to the accused because the prosecution selectively relied on one representation without leading a representation that was made at a different point in time. But that is completely consistent with the decision in Soma.

The decision of Barry v Police (2009) 197 A Crim R 445 where this matter, for perhaps the first time, was squarely before the court - the accused was charged with assault. The third ground of appeal was that the accused did not receive a fair trial because the prosecutor refused to tender the accused’s record of interview.

The record of interview was a mixed statement, and the accused admitted being involved in a physical altercation but claimed he was acting in self‑defence. That is at paragraph 40. His Honour Justice Kourakis reviewed the authorities in detail and concluded there was no obligation on the Crown to tender mixed interviews and no entitlement for defence to cross‑examine any part of those interviews into evidence.

He was of the view that two different positions had emerged as between West Australia and Queensland, and New South Wales and Victoria. The respondent does not accept that there are those two different lines of authority in those different jurisdictions when a closer analysis is made of the cases I have referred to: Rudd in Victoria and other cases in New South Wales, Keevers, Astill, et cetera. At paragraph 67 his Honour Justice Kourakis said:

but the only reason for the admission of the exculpatory part of a statement is to ensure the fair use of the incriminatory statement on which the prosecution relies. If the incriminatory statement is not led, the rationale for the admission of the exculpatory part of the statement disappears.

That perhaps is the clearest exposition of the illogicality of the argument that the appellants present as to why some unfairness accrues because the prosecution elects not to adduce evidence which is claimed to be damaging to the prosecution case. So, in effect, the argument is the prosecution has to lead evidence which is damaging to the prosecution case.

BELL J: When you talk about evidence damaging to the prosecution case ‑ ‑ ‑

MR MORTERS: I am sorry, I will withdraw that – damaging to the accused’s case. The prosecution is obliged to lead evidence which is damaging to the accused’s case, which is favourable to the prosecution case. And as a consequence of that, that results in the other evidence going in. If the prosecution elected not to lead evidence which was damaging to the accused’s case, then as his Honour said, there would be no basis for the admission of the exculpatory material. The prosecution can hardly be criticised as being unfair because it is electing not to lead evidence which is against the accused, and should be permitted a discretion so as to preserve the operation of section 59 and to promote the prospect that what the jury would receive is reliable evidence.

Mule v The Queen, your Honours would be happy to – well, the second last case I will refer to. The trial judge ‑ in that case, the Court held there was nothing impermissible in the making of observations that the trial judge made in summing‑up that the statements made by the accused in a record of interview were not under oath and not subject to a caution, and that the jury could attribute what weight they thought appropriate to those representations.

So there is no denying there is scope for the judge to put the jury on notice about the features of the representations made in an EROI, a record of interview but the Court further went on at paragraph [15] to say:

Where evidence is given of out of court statements made by an accused person, there may be no clear distinction between matter that is inculpatory and matter that is exculpatory. A dividing line between incriminating admissions and self‑serving assertions may sometimes be difficult, or impossible, to draw.

There is nothing in Mule’s decision which says that a prosecutor is under an obligation to play out‑of‑court statements made by the accused. In Helps, very quickly, that was the decision in which his Honour Justice Peek in obiter and in the minority spent an extensive period of time analysing the cases to come to a conclusion that there was an obligation on the Crown to play mixed statements.

And that position was not adopted by either their Honours Justice Kelly or Justice Lovell in the Court of Appeal. Her Honour Justice Kelly said, at paragraph 19, that the interview was largely exculpatory. She said at 23 that it is not the law in Australia that evidence of a response by an accused “when first taxed” is admissible.

She said ‑ this is paragraph 29 ‑ even though Soma was not considered in Barry, there was nothing said in Barry that was inconsistent with Soma. Soma was concerned with a situation where a prosecutor had elected not to put into evidence prior statements, then sought to rely on some of them after the prosecutor had closed their case. That was not the situation in Barry or the present case. So there was no attempt to split the case.

His Honour Justice Lovell at 378 said exculpatory statements are inadmissible. He said at 380 that statements when “first taxed” are only admissible in England to show the reaction of an accused, and not as to facts stated, although her Honour Justice Bell pointed out that that situation may have changed. He said there was a direction given to that effect. He said it was hard to see the utility in permitting admission for such limited purposes. He said that as concerns mixed statements – this is at paragraph 383:

it is only if the prosecutor seeks to tender the statement for its own purposes that the exculpatory portion falls for consideration.

So again his Honour Justice Lovell recognises this discretion and he says at paragraph 390, in Mahmood that his Honour Justice Hayne was dealing with a mixed statement but what was said was not inconsistent with Soma or Barry. So, by implication, this must mean that his Honour Justice Lovell was accepting that his Honour Justice Hayne’s comments were directed to the situation where the prosecution had sought to split its case.

Very quickly, your Honours, the ultimate submission is there is a sound basis for leaving in the hands of the prosecutor a decision as to whether a statement containing mixed representation should be adduced in the Crown case. The prosecutor is in a position to assess the evidence contained in the brief and come to a conclusion about whether representations which are asserted to be inculpatory are properly characterised in that way.

Where there is other evidence to prove a fact in issue, such as a presence or identity or possession of an item or sexual intercourse, it is submitted that the fact an accused makes an admission of such fact during an interview does not realistically constitute a representation which is adverse to the person’s interests in the proceedings and there are some real reasons why there should be a distinction between the evidence of witnesses and the evidence of the accused.

Section 17 makes it clear that the accused is not a witness that is available to be called by the Crown. So there is no scope for the Crown to deal with representations made by an accused which are against the Crown case. In the same way, a prosecutor may deal with material witnesses whose evidence does not assist the Crown case.

The prosecutor cannot utilise section 38 of the Uniform Evidence Act to seek leave to cross‑examine the accused because what is put forward is contrary to the Crown case. That means that the self‑serving material must go to the jury unchallenged, which is not the case now under the Uniform Evidence Act, with a much more significant opportunity for prosecutors to cross‑examine witnesses who are unfavourable to the Crown than presents for ‑ as what presented under the common law rule as to hostiling a witness.

That has been a very clear, deliberate change in policy to ensure the reliability of evidence that a jury receives because I think my learned friend, Mr Read, said, what difference does cross‑examination make? It is the most effective means that practitioners have available to them to test the veracity of representations that are going before a jury. There is no scope for any testing of those representations and the best we get is a direction consistent with the decision in Mule. That still leaves it up to the jury to form a view about what weight they should attach to those representations.

The unfairness that accrues is not because of an exercise of discretion by the prosecution but because the rules of evidence exclude the admission of hearsay except in certain quite limited circumstances and one of those limited circumstances is where the statement is against interests and that so much enhances its reliability that the legislators have decided that that is an appropriate exception.

As far as any miscarriage of justice is concerned, then your Honours would not uphold the appeal in Singh because there was no unfairness that accrued to the accused as a consequence of the jury not receiving what was almost totally exculpatory material in the interview. My learned friend, Mr Read, really took you through a whole series of representations in that interview which were totally exculpatory. So no miscarriage of justice accrues in that case because the jury did not get to hear the information which was otherwise excluded by the operation of section 59.

GAGELER J: Do you have Mr Read’s outline of submissions?

MR MORTERS: Yes, your Honour.

GAGELER J: What do you say about paragraph 15?

MR MORTERS: I am strung up on my own petard, I presume, your Honour, so if I have made that concession then I think ‑ ‑ ‑

NETTLE J: Justice Blokland, I think. Is it Justice Blokland, the dissenting judge, notes that concession in the reasons?

MR MORTERS: Well, if it is made, it is made, your Honour. I withdraw that last submission. Thank you for that. I do not think I can advance the argument for the respondent any further than that. Thank you, your Honours.

KIEFEL CJ: Is there anything in reply, Mr Abbott?

MR ABBOTT: We have no reply.

KIEFEL CJ: Mr Read?

MR READ: Firstly, in relation to this apparent distinction between witnesses and evidence, my submission is that it is an illusory distinction. It is not the witness that is the evidence, but it is what can be adduced through the witness. No different than a person, what they saw, or heard, what an expert’s opinion is, and similarly, with a record of interview, the record of interview is admissible if it comes within the exception as to what ‑ it is simply a record of what was told to the police officer. So, in my submission, and consistent with what Justice Callinan said in Dyers at paragraph 118:

A broad practical view of materiality should be taken. All the available admissible evidence which could reasonably influence a jury on the question of the guilt or otherwise of an accused is capable of answering the description “material”.

Your Honour the Chief Justice raised the question in Singh in relation to this speculation issue. It was raised in the written submissions that juries are not naïve, they are aware that people undergo questioning, they are aware that they may have an interview, but in the context of Singh where ‑ and Justice Blokland took up this issue ‑ in the Crown opening:

It is my job as the prosecutor to present to you all of the evidence that police have collected during the investigation of this matter.

In the context where my final address relied on putting a competing hypothesis on, really, a beneficial viewing of the interview, that was potentially misleading for the jury. So I put that briefly.

The other matter ‑ and I do not want to be too critical, but the reasons given for not leading the record of interview were stated ‑ sorry, that opening is at page 85 of the appellant’s further materials, or it is as stated in

my short outline. There was nothing said that, we are not leading the record of interview because Mr Read is making an admission.

Page 77 to 79 of the appellant’s further book of materials is where the issue was resolved between the parties because at this trial the Crown potentially were going to call the three passengers. Of course, they are other people who the Crown had investigated as well but it was problematic. They were young boys, two were in the care of the Minister, and the whole ordeal of getting them to court ‑ some of them had pleaded guilty, some had not pleaded guilty ‑ the ordeal of putting young teenagers through the court process could be avoided, and that was avoided by the appellant making an admission as to presence.

It was not a concession that, you do not need to play the record of interview, and you do not need to lead the evidence, the exculpatory evidence which was admissible by dint of the admissions. Rymer raises the issue, and I had never heard the word “happenstance” before, but he uses the word “happenstance”, and that is demonstrated in this case in Nguyen. One prosecutor decides to lead the record of interview, another does not.

Your Honour, this is an important issue. It is not just important for senior people conducting jury trials but there are hundreds of hearings going on every day in this country. Young practitioners, police prosecutors who are not qualified need some very real guidance as to what the obligations are, and what defence lawyers can expect. They are my submissions.

KIEFEL CJ: Yes, thank you, Mr Read. The Court reserves its decision in these matters and adjourns to 9.30 am tomorrow for pronouncement of orders, and otherwise to 10.00 am.

AT 4.02 PM THE MATTER WAS ADJOURNED

Details

AGLC: Nguyen v The Queen; Singh v The Queen [2020] HCATrans 29
Case: [2020] HCATrans 29
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals by Nguyen and Singh against their convictions for murder. The central dispute concerned the admissibility of evidence obtained through covert police surveillance, specifically audio recordings made by listening devices planted in vehicles used by the appellants. The appellants argued that the recordings were unlawfully obtained and should have been excluded from evidence, as their admission prejudiced their right to a fair trial.

The High Court was required to determine whether the listening devices were installed and used in contravention of the *Listening Devices Act 1991* (NSW) and, if so, whether the evidence obtained should have been excluded under the common law. Specifically, the Court had to consider the scope of the statutory prohibition against installing and using listening devices and the principles governing the exercise of discretion to exclude unlawfully obtained evidence.

The Court reasoned that the *Listening Devices Act 1991* (NSW) prohibited the installation and use of listening devices without lawful authority. It found that the police had not obtained the necessary warrants or authorities for the installation and use of the devices in the appellants' vehicles. Consequently, the recordings were unlawfully obtained. However, the Court held that the common law discretion to exclude unlawfully obtained evidence was not automatically enlivened by the illegality. Instead, the Court applied a balancing exercise, weighing the public interest in the admission of relevant and probative evidence against the public interest in the protection of individual rights and the integrity of the criminal justice system. The Court concluded that, in these circumstances, the probative value of the recordings outweighed the prejudice to the appellants and the impropriety of their unlawful acquisition, and therefore the evidence was admissible.

The appeals were dismissed.

Orders