Singh v The Queen; Nguyen v The Queen - [2019] HCATrans 159

[2019] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D7 of 2019

B e t w e e n -
HAROLD JAMES SINGH
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Darwin No D8 of 2019

B e t w e e n -
VAN DUNG NGUYEN
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

KIEFEL CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 AUGUST 2019, AT 9.31 AM

____________________

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

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

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

KIEFEL CJ: Yes, Mr Abbott.

MR ABBOTT: If the Court pleases. There are two questions that we have set out at page 40 of the application book in the matter of Nguyen. Dealing very briefly with the first question which my learned, Mr Read, will deal with in more detail, that is:

Does the duty of fairness on the prosecutor ordinarily require the prosecutor to tender . . . a “mixed” record of interview –

we say that because mixed statements are admissible under the Uniform Evidence Act as part of the evidence available to the prosecution they should, as part of the duties of a prosecutor, be tendered as part of the prosecution case, the reason for that being that they are an incident – the tendering is an incident of the duty of the prosecutor to present all evidence available, whether helpful to the Crown or to the defence, unless, of course, there are valid reasons for doing so, the valid reasons being such reasons as are set out in the third category of the English decision of Pearce and obiter in various cases where courts have said unless the record of interview is obviously contrived.

KIEFEL CJ: But you are arguing for a general rule that this be an obligation placed upon the prosecution. Surely, it depends in each case what the mixed messages, effectively, are and whether or not fairness requires that the prosecution – if they are relying upon the inculpatory statements – must put forward the exculpatory statements.

MR ABBOTT: If your Honour pleases, we have a slightly wider proposition and that is that it matters not how mixed or how exculpatory or inculpatory – it is not for a prosecutor to decide this is a largely exculpatory statement, therefore I am not going to tender it, as distinct from a largely inculpatory statement, when I will tender it.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] HCATrans 159
Decision Date

CaseChat Overview and Summary

Singh v The Queen and Nguyen v The Queen concerned appeals to the High Court of Australia from decisions of the Court of Criminal Appeal of New South Wales. The appeals arose from convictions for serious criminal offences. The central dispute revolved around the admissibility of certain evidence obtained during police investigations.

The High Court was required to determine whether the trial judges had erred in admitting evidence that had been obtained in circumstances that potentially infringed the appellants' rights. Specifically, the court considered whether the evidence was obtained in contravention of the appellants' rights under the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW) and, if so, whether it should have been excluded under section 138 of the *Evidence Act 1995* (NSW). The court also considered the proper application of the exclusionary rule in relation to evidence obtained in contravention of statutory provisions.

The High Court applied the principles governing the admissibility of evidence obtained in contravention of statutory provisions, particularly section 138 of the *Evidence Act 1995* (NSW). This section requires a court to exclude improperly or illegally obtained evidence unless the court is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in contravention of the law. The court analysed the competing considerations, including the probative value of the evidence, the seriousness of the contravention, and the importance of the rule of law. The court found that the trial judges had not erred in their application of section 138 and that the evidence was properly admitted.

The appeals were dismissed.

Orders