Case stated for opinion of the Full Court pursuant to s 21 of the Supreme Court Act (NT) – Is the accused’s recorded interview with police admissible in the Crown case? – record of interview “mixed” containing both inculpatory and exculpatory material but substantially exculpatory – record of interview admissible in the Crown case – record of interview not admissible in defence case
Case stated for opinion of the Full Court pursuant to s 21 of the Supreme Court Act (NT) – Is the Crown obliged to tender the recorded interview? – no duty to tender “mixed” records of interview
Supreme Court Act (NT) s 21 Evidence (National Uniform Legislation) Act (NT) s 3, s 81
[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.
Continue reading The Queen v Nguyen
Sign in free to access the full text
Details
AGLC
The Queen v Nguyen [2019] NTSC 37
Case
[2019] NTSC 37
Decision Date
CaseChat Overview and Summary
The Queen v Nguyen was a case heard by the Full Court of the Supreme Court of the Northern Territory. The defendant was charged with two counts of attempted murder. The key issue was whether the recorded interview with the police conducted with the defendant was admissible in the Crown’s case and whether the Crown was obliged to tender the interview. The defendant argued that the Crown’s decision not to tender the record of interview amounted to an abuse of process, was a breach of the prosecutorial duty to present the case fairly and completely and impinged on the defendant’s right to a fair trial. The Crown, on the other hand, argued that there was no obligation on them to tender the interview, as it contained exculpatory evidence.
The court examined the admissibility of the interview under section 81(1) and (2) of the Evidence (National Uniform Legislation) Act (NT). The court found that the hearsay prohibition did not apply to an admission, which includes a defendant in a criminal proceeding. The record of interview contained admissions adverse to the defendant’s interest. The court also found that the record of interview was admissible under section 81(2) as it was reasonably necessary to refer to the other statements to understand the admission. However, the court held that the Crown was not obliged to tender the interview as there was no duty to tender “mixed” records of interview.
The court concluded that the record of interview was admissible in the Crown case, but it was not admissible in the defence case. The court also held that there was no duty on the Crown to tender the interview. The court further held that the Crown’s decision not to tender the interview was not an abuse of process and did not impinge on the defendant’s right to a fair trial. The court did not make any final orders in this case, as it was a reference to the Full Court for opinion.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The defendant did not give evidence. At the end of the first trial, the trial judge left defensive conduct to the jury. As mentioned above, the jury were unable to reach a verdict on both counts and were discharged.Background to the questions referred As is set out in the Referral to this Court, before the second trial, counsel for the Crown in the first trial advised counsel for the accused and the trial judge that the Crown would not tender the record of interview in the second trial. The decision was stated to be for “tactical” reasons. Further, it was pointed out that the accused’s version was exculpatory and if tendered the accused would not be subject to cross-examination. The accused, it was said, could give evidence about the matters in the record of interview if he chose to do so. The defendant made an application to stay the proceedings on the grounds that the Crown’s decision not to tender the record of interview amounted to an abuse of process, was a breach of the prosecutorial duty to present the case fairly and completely and impinged on the defendant’s right to a fair trial. Counsel for the Crown argued the record of interview was wholly or substantially exculpatory and in any event there was no obligation on the Crown to tender the interview. Both parties indicated a desire to appeal the result in the event of an unfavourable ruling made before the trial. Given the proximity to the same issue that was to be dealt with in Singh v The Queen (“Singh”),[41] the parties requested the questions be referred to the Full Court.Question 1: Is the record of interview of 19 July 2016 admissible in the Crown case? The record of interview is clearly admissible under s 81(1) and (2) of the Evidence (National Uniform Legislation) Act (NT) (“UEA”). Under the UEA the hearsay prohibition does not apply to an admission. An admission is defined as a previous representation that is adverse to the person’s interest in the outcome of the proceeding to which they are a party, which includes a defendant in a criminal proceeding.[42] Clearly the record of interview contains admissions adverse to the defendant’s interest. Further, s 81(2) provides the hearsay rule does not apply to evidence of a previous representation:(a)that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and(b)to which it is reasonably necessary to refer in order to understand the admission. Section 81(2) was explained by Barrett J in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd:[43]The meaning of “shortly… after” is to be understood in the light of the purpose s 81(2) is intended to serve. It is an adjunct to s 81(1) which puts evidence of an admission beyond the operation of the hearsay rule. Section 81(2) recognises that some of the hearsay statement may serve to give essential added content to an admission, in that the other statement is necessary to a proper understanding of the admission. But s 81(2) also recognises that the other statement will be of exculpatory or clarifying value only if intimately associated with the admission. The need to exclude the intervention of self-serving after-thought, re-construction or alteration is recognised by the words “made… at the time the admission was made, or shortly before or after that time”.