Singh v The Queen; Nguyen v The Queen [2019] HCATrans 159 (16 August 2019)

Last Updated: 20 August 2019

[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

Copyright in the High Court of Australia

____________________

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. We say a valid reason for the exercise of the prosecutorial discretion not to tender a mixed record of interview does not descend to tactical reasons such as were evident in the case of Nguyen, which was the subject ‑ ‑ ‑

KIEFEL CJ: You are relying on the prosecutor’s statement.

MR ABBOTT: We rely upon the prosecutor’s statement. We rely upon the referral. The referral in this matter is set out at the application book, page 4, and the Court will see that the referral in this case was on the – the Full Court was asked to deal with the question raised in these terms:

Before the commencement of the second trial, counsel for the Crown in the first trial advised counsel for the accused and the Court that the Crown would not tender the recorded conversation referred to in para 4 above. He indicated the decision was made for ‘tactical’ reasons.

GAGELER J: What does that word mean when it is used by the prosecutor?

MR ABBOTT: The referral goes on to say what that means. In this case it meant, quote:

In further explanation, counsel told the Court the accused’s version given in the record of interview was exculpatory and if it was tendered the accused would not be subject to cross‑examination. Counsel said the accused could give evidence about the matters in the record of interview if he chose to do so.

In our submission, the use of the word “tactical” was to enhance the prospects of the success of a conviction.

KIEFEL CJ: It is a poor use of language by a prosecutor, perhaps not understanding the proper role of a prosecutor. But the essential reason he is putting forward was that it was purely exculpatory. It was not a mixed record of interview at all.

MR ABBOTT: But the court dealt with the basis – the Full Court dealt with it on the basis that the record was mixed and it contained both exculpatory and inculpatory statements.

KIEFEL CJ: You say that is right?

MR ABBOTT: I say that is correct. I say that this matter has come to this Court on the basis of the finding of the Full Court that there were both inculpatory and exculpatory statements in the record of interview, that it was a mixed record of interview, that there is no notice of contention challenging that finding and that this Court should, therefore, proceed on the basis that it was a mixed record of interview as is currently defined.

May I turn to, very briefly, the case of Whitehorn and Justice Deane because, in our submission, Justice Deane in his judgment in Whitehorn [1983] HCA 42; (1983) 152 CLR 657 at 663 sets out a number of propositions which the Full Court of the High Court picked up in Apostilides, but the propositions that we find at pages 663 and 664 of Whitehorn, are these:

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.

Secondly, the Crown, in presenting its case, must act with:

fairness and detachment –

and must do all that it can:

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

The observance by the Crown of what Justice Deane referred to as the:

traditional considerations of fairness requires that prosecuting counsel –

must, to use Justice Deane’s words:

refrain from deciding whether to call a material witness by reference to tactical considerations –

His Honour, in our submission, was quite clear that tactical considerations raised an issue of unfairness because we say that is exactly what happened in this case and, by inference, a decision not to call a witness for purely tactical reasons is a departure from the standards which the law requires to be observed to ensure that an accused’s trial is a fair trial. Moreover, Justice Deane went on to say in Whitehorn that the failure – such as a failure to tender evidence on the basis of tactical reasons to enhance the prospects of a conviction – may:

warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial.

We contend that the decision of the prosecutor in this case not to lead the interview for tactical reasons only constitutes – potentially constitutes a denial of the applicant’s right to a fair trial. In this regard, I refer the Court to the sixth principle in Apostilides at page 575 of the report, where this Court said:

A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.

In our submission, not tendering the record of interview in this case does gives rise, or may give rise to a miscarriage of justice. The point of all this is that when their Honours came to consider the issue on the referral they had no regard to the principles laid down by Justice Deane in Whitehorn nor, indeed, to the six propositions in the case of Apostilides, although it is mentioned – I point out that it is mentioned in Singh but briefly, not for the purposes of explaining the exercise of the Court’s – the prosecutorial discretion – but merely for the purpose of saying what is a remedy.

Can I then deal very briefly in more detail with the second question which the court dealt with which was, on the referral, was the Crown obliged to tender the record of interview? All members of the Full Court answered that question in the negative. We say that there is error there because none of the members of the Full Court had regard to the principles which I have referred to, set out by Justice Deane in Whitehorn. They came to answer that second question but did not consider that the reason for not leading the record of interview in the trial was tactical.

We say that that failure required consideration of, first, whether the prosecutor was properly performing his functions and whether the trial would be one in which he was acting with fairness and detachment and with the objectives of establishing the whole truth in accordance with the ordinary procedures and standards of the law; and, secondly, they failed to consider whether the departure from those standards, constituted by a decision not to lead evidence for tactical reasons, may so affect or permeate the trial so as to warrant the conclusion that we were denied, or potentially denied, a right to a fair trial.

Really, Justice Kelly, with whom Justice Barr agreed, postulated – and that is to be seen at application book 16 and 17 - only one question and the question was, would the accused be deprived of a fair trial if the prosecution failed to tender the record of interview at the second trial? I have no problem with that question being postulated, but it was answered without apparently having any regard to why the prosecution was not going to tender the record of interview and without any exploration of the conduct of the prosecutor and how that conduct may have resulted in an unfair trial.

KIEFEL CJ: What do you say about the Full Court’s reliance upon what then Justice Kourakis in Barry v Police at paragraph [19] of the reasons – about the rationale for the admission of the exculpatory part of the statement disappearing if the prosecution does not tender the inculpatory part?

MR ABBOTT: This begs the question as to whether or not the record of interview should be led as part of the proper exercise of prosecutorial discretion to act fairly and to place all relevant evidence ‑ ‑ ‑

KIEFEL CJ: That does not beg the question but it is an answer, is it not, to this notion that there can be one overarching rule that resolves the question of fairness in every trial. Creating an obligation on the prosecution to tender mixed statements at the request of the defence is surely a matter which has to be dealt with on a case‑by‑case basis by the trial judge to ensure fairness in the particular case. But I do not think there is anything in the authorities which you could point to which would support the basis for a general rule.

MR ABBOTT: Obviously, it has to be on a case‑by‑case basis because of the existence of a prosecutorial discretion and a discretion obviously ‑ ‑ ‑

KIEFEL CJ: No, because of how questions of fairness arise and are dealt with in a criminal trial.

MR ABBOTT: Yes. That is why my submissions are more directed to our second question at application book page 40, namely, is it appropriate for the prosecution not to lead a record of interview for tactical reasons only, that is, to enhance the prospects of a conviction.

KIEFEL CJ: You would not say that special leave in this case is going to depend upon a statement by the prosecutor. If that was all there was – your case really must depend upon whether or not - the basis that the prosecutor gave for that decision which is that he saw it as purely exculpatory and, therefore, self‑serving.

MR ABBOTT: I can only proceed on the basis of what the referral says. The court below dealt with this matter on the basis of the referral document referred to them. At page 11 of the application book – in the paragraph I have already read at paragraph [7] on that page – that was the basis on which the Full Court was invited to deal with the two questions.

KIEFEL CJ: Yes, but what I am trying to say to you is, although the use of the word “tactical” was unfortunate the prosecutor did actually have a reason for not tendering it. Whether it was correct or not, whether it was purely exculpatory may be put to one side, but there was an underlying proper reason based in evidence, namely, that it would have been simply self‑serving and there is no basis for tendering that unless there was some other question of fairness that arose which required it to be tendered.

MR ABBOTT: With respect, your Honour is reading perhaps too much into the lines:

By way of further explanation, the prosecutor told the Court the accused’s version given in the record of interview was exculpatory –

He does not say it was “purely exculpatory”. I take that to mean ‑ ‑ ‑

KIEFEL CJ: It does not say it is – yes, all right.

MR ABBOTT: He does not say it is “purely exculpatory”. Our case ‑ ‑ ‑

KIEFEL CJ: But the bottom line is these special leave applications really depend, as a point of principle, on there being an obligation on the part of the prosecution to tender mixed statements. Is that not right?

MR ABBOTT: Yes, and we say there is an obligation to tender mixed statements as part of the prosecutorial discretion unless there is good reason not to do so. The mere fact that a statement is mixed – contains some exculpatory and some inculpatory statements – is not a good reason. That is the beginning and end of that argument. We say that in this case the reason given, namely, for tactical reasons, is certainly not a good reason so those two propositions distil down our argument in this case. We say that, moreover, the failure of the Full Court to investigate that issue and to use – or, rather, I should say, to use that issue as a basis for answering the second question that was referred, demonstrates error on the part of the Full Court.

GAGELER J: Do you get any assistance from the reasons of Justice Blokland?

MR ABBOTT: Yes, I do get some assistance from the reasons of Justice Blokland. Justice Blokland said that she was bound by the decision, the previous decision some weeks before that in the matter of Singh and, therefore, having dissented in Singh, she was – these are my words, not hers – unable to dissent in Nguyen. She held, having – this is at application book, pages 30 and 31 – and she said that that decision in Singh stood for two propositions: firstly, that there was:

no general rule or principle that the duty of fairness requires the prosecution to tender a record of interview –

albeit, admissible on the Crown case and that as a consequence, she said – this is at application book page 31, paragraph [44]:

Further, it is a matter for the prosecutor to determine what witnesses will be called and what evidence will be adduced in the Crown case.

We say that that is not so. That is not the ambit of the discretion. Whilst there is, of course, some part of the discretion which requires the prosecutor to determine what witnesses will be called and what evidence will be adduced, the prosecutor cannot exclude evidence just because it might weaken the prosecution case and might weaken the prospects of a conviction.

GAGELER J: I am sorry; you would accept that as a fair summary of what was actually held in Singh?

MR ABBOTT: Yes, yes. You will see that as to that second proposition Justice Blokland had some concerns and she said this, at application book page 31, paragraph [45]:

That issue determined, there remains some concern about whether the re‑trial will be perceived to be fair if a significant piece of partially exculpatory material is withheld from the jury when it was tendered in the first trial. The reason the interview will not be tendered is effectively that the Crown case will be stronger without it. If the defendant does not give evidence as occurred in the first trial, defensive conduct will be diminished or possibly may not be left to the jury.

She went on to say at paragraph [46]:

broader considerations of perceptions of fairness of the trial process are evident with this particular defendant in these circumstances.

Then, she went on to say – we say we do not agree with this:

It is appreciated this perception does not reach the level of actual trial unfairness –

We say it does reach the level of actual trial unfairness. But she then also raises the matter that is referred to in the submission of the Northern Australian Aboriginal Justice Agency, that is, that the defendants, invariably in the Northern Territory, are under the misapprehension that the interview will be evidence used by a judge in a court. She deals with that at application book page 35 at paragraphs [53] and [54]. You will see that she starts that consideration at page 34 of the application book, where she says:

A second matter of some importance is that in this case . . . the defendant was asked to explain back in his own words –

about “anything may be used in evidence” and the defendant explained it as:

Yeah. Whatever you ask and whatever I answer will be taken as evidence in the court.

She construed that as meaning:

The defendant’s understanding appears to be that the interview “will” be taken as evidence in court, notwithstanding the interviewing police officers said it “may” be used as evidence.

Her Honour then adverted to the potential for miscommunication. So, we say in conclusion that the Full Court erred in finding no relevant unfairness in circumstances that are reasonably arguable that unfairness exists and that that unfairness would render the proposed trial an unfair trial. May it please the Court.

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

MR READ: If your Honours please. In relation to that first question, it is not said that there is a concrete obligation on the prosecution to lead records of interview. It is a case‑by‑case proposition and there may well be reasons why a record of interview ought not to be led by the prosecution.

Your Honours, there is a divergence of opinion in Australia as to the application of the principle that a prosecutor has the obligation to ensure the Crown case is presented fully and fairly to the accused and to the court with regard specifically to records of interview which contain both admissions and exculpatory statements. That divergence of opinion is stated in Richardson in Western Australia, Helps in South Australia ‑ ‑ ‑

KIEFEL CJ: But, Mr Read, if there are differences of practice in each State what does it matter if you say there is no general obligation?

MR READ: Because, in our submission, your Honour, the general obligation is based on the fundamental principle of the prosecutor to ensure that there is a fair trial and that all relevant evidence is put before the trial of fact.

GAGELER J: It would be the same approach that would be applicable in federal jurisdiction as in State and Territory jurisdiction, I suppose you would say.

MR READ: Yes. Admissions are admissible under section 81 of the uniform legislation, together with the further statements qualifying those admissions. This is the situation at common law with the exculpatory statements becoming evidence of the fact. It is not necessarily conceded now under the UEL, although this was not argued, as to whether the preliminary requirement that an admission only be led by the party seeking to rely upon it. That is not made plain under the legislation and it is certainly not said.

It is submitted that the application of principle requires that if there is admissible evidence in the hands of the prosecution which is relevant, which is axiomatic, such evidence ought be adduced for the trier of fact unless there is good reason not to – such as being patently contrived or, as a number of interviews I have seen over the years, completely scurrilous. This approach is consistent with the application of the principle regarding a prosecutor’s obligation to call all relevant witnesses unless there is an identifiable reason for not doing so.

Interestingly, in Dyers, Justice Callinan expands that, rather than simply to the notion as to witnesses as to all material evidence. In my submission, once there is admissible evidence in the hands of the prosecution, then, unless there is good reason not to lead it, it should not be. In this trial, the principal reason given was that of unfairness to the Crown because the accused could not be cross‑examined as other witnesses – well, that is plainly so. If that were a legitimate reason, then records of interview would never be admitted and never would have been admitted. Any perceived unfairness to the Crown is ordinarily dealt with by the directions under Mule.

It is submitted that a fair trial requires that the finder of fact should be aware of admissible, evidentiary material which is capable of supporting a defence or, indeed, establishing a positive defence. The account given by an accused at a record of interview can be important evidence but, also, its shortcomings are usually identified and contrasted with sworn testimony. A finder of fact, when directed correctly, is well equipped to put this evidence into the mix and the finders of fact these days are asked to deal with very, very, complicated issues and in different ways they might use evidence in trials.

It is submitted that if there is evidence upon which a jury can either act – or, indeed, in the criminal trial arena – provide material which legitimately or potentially raises a competing hypothesis for reasonable doubt and, as a matter of fairness, the finder of fact is entitled to be appraised just as much as the accused is entitled to support a defence with admissible relevant material.

GAGELER J: You are, at this point, addressing the merits of the argument but insofar as we are concerned with the appropriateness of a grant of special leave you point to the difference of practice in different States. You point to the dissent in this case.

MR READ: Yes.

GAGELER J: Do you also point to the particular unfairness that you would say arises from the prosecution opening statement in this case?

MR READ: In this particular case, yes.

GAGELER J: We are concerned with questions of principle, but we have to relate them to the particular case.

MR READ: Yes. That is absolutely right. If there has been a failure to call a witness or adduce a piece of relevant evidence, even thought that may be perceived as unfair it still has to be demonstrated that that unfairness has resulted in a miscarriage. In this particular case, your Honours, in real terms – and even though it was clearly supported by the learned trial judge’s directions – the submissions to the jury may not be satisfied on the basis of the CCTV that the applicant was complicit. It is a hollow lawyer’s submission and yet it could have been supported by an assertion by the accused at the police station.

In the accompanying application, of course, the applicant would be deprived of self‑defence unless he gives evidence. In Weetra, for example – this related to the failure to give the additional direction but it is an acknowledgment by Justices White and Peek that they regarded the exculpatory evidence as an important piece of evidence and allowed the appeal because it was not made clear that a jury could use the exculpatory evidence as to fact – an otherwise strong prosecution case.

Your Honour, at the risk of being a plaintiff legal aid lawyer, the decision whether to give evidence is seldom easy or obvious and the Court might infer it is a fraught one, particularly with defendants of limited intellectual capabilities seeking to give evidence of their actions often a year or so or more.

As raised in Azzopardi, the “failure to give evidence” must not be equated with a fear that guilt will be uncovered. The finder of fact in the context of all the other evidence is well placed to assess an electronically‑recorded questioning generally at or around the time of offending and a collateral point of fairness often – but it was not in this case, I might add – there was no suggestion that this interview will be used in court; it was only an oblique suggestion that we need to make sure you understand your rights.

As raised in the affidavit material of Mr Woodroffe in the application to appear as amicus, it set out in full the circumstances of indigent, disadvantaged defendants who do choose – and often are not represented by lawyers – to give their account and the difficulties that they will face later should they be – “pressured” is the wrong word – but, really, compelled to give evidence because a record of interview is not played.

GAGELER J: There is some allusion to that, I think, in the dissent of Justice Blokland.

MR READ: Yes, there is, and.....the sentencing remarks in Singh, his sentence is mitigated because of his fairly low intellectual capacity. The other reason - apart from the divergence of opinion there is also this issue that Justice Grove raises in Rymer and it is really one of predictability. What is going to be a prosecutor’s decision as to whether to call a record of interview? Is it simply a matter of chance, depending on the particular prosecutor as to their view? Is it a question as to whether there is other evidence that is capable of proving those matters which are covered by the admissions?

Then, you have in South Australia the remarks that really – and it is referred to in Barry’s Case – the prosecutor may choose to confer a benefit on the defence. If we are talking about a prosecutor’s duty to ensure a fair trial, conferring a benefit is not a relevant consideration. His consideration is to ensure that there is a fair trial and there is a fair trial to the accused, not that he might happen to feel sorry for the particular defendant or does not like the complainant and, therefore, tenders the record of interview and confers a benefit.

GAGELER J: Where is that language used in Barry?

MR READ: It is either used in Barry or it is referred to from a case that is cited. It is perhaps a loose term that is used but what it feed into is this idea that one is at large in trying to predict whether the general practice will be to tender a record of interview or lead a record of interview. Really, I am getting close to the end.

Your Honours, the applicant says that the court can go no further than the analysis of Justice Peek in Helps to support its submission that the position in England, New South Wales and Victoria, the usual practice of tendering mixed records of interview, unless there is some identifiable reason for not so doing, is consistent with prosecutorial fairness and ensuring a fair trial, even if there is the contrary argument that the only rationale for tendering a mixed statement is so that the Crown can rely on the admissions within.

Ultimately, it is submitted that the underlying principle of the obligation to ensure a fair trial must determine the issue. There are some remarks in Walton’s Case by Justice Deane and, indeed, by Northern Territory’s previous Chief Justice Martin in Flowers, that even if, perhaps, the strict rules of admissibility may found an argument not to lead the evidence in a case of serious allegations then, as a matter of fairness, the record of interview should be tendered.

There is also the secondary basis for the tender of the record of interview and that is pursuant to section 60 that it is for a non‑hearsay purpose, namely, the first response, the demeanour of the complainant and, interestingly, in Mahmood, notwithstanding that the interview did not go in – that the subsequent re‑enactment did not go in by the prosecution – the reaction was used as evidence of, effectively, the consciousness of guilt. So, it was admissible on that basis. Justice Edelman in Lovett also refers to the use that the prosecution may use of an interview where there is either selective answers and ‑ ‑ ‑

KIEFEL CJ: Mahmood was a case where the prosecution was very selective in its use of materials.

MR READ: That is right. Really, that is how the case could be decided and it could be decided on the Soma basis and also the inadequacy of the trial direction to exclude the remarks in relation to the demeanour at the time of the stabbing. But in relation to Mahmood, even though that was the case, the submission is that Justice Hayne’s additional remarks were carefully considered and the leading cases on prosecutorial obligation were
cited, this part of the decision was more in the vein of further reasons as to why the appeal should be allowed beyond a necessary basis.

This analysis, with respect, cuts through. If, in accordance with the notions of fair trial which require all relevant evidence to be before the finder of fact, then the problems in that case would not have occurred and they would not have occurred in many, many cases. The judgment of Justice Peek in Helps should not be put to one side, particularly at this stage because it demonstrates the divergence of opinion as to prosecutorial obligation. His judgment is based on the cardinal principle that a prosecutor always has the obligation to ensure a fair trial.

Justice Peek, as did the other members of the court, allowed the appeal but he also allowed on the basis of the failure of prosecutorial obligation. Although Justice Lovell discussed mixed statements, he specifically held the question of prosecutorial obligation did not have to be decided. Justice Kelly – she held that there were two distinct positions that emerged over existence of the prosecutorial obligation. There was no general analysis by her as to the competing approaches as to prosecutorial obligation, but, instead, her judgment focused on upholding the correctness that the interview could not be cross‑examined by the accused.

GAGELER J: I am sorry, what case are you speaking of here?

MR READ: This is Helps in South Australia. In my submission, your Honour, what is almost a treatise by Justice Peek is a convincing and persuasive argument as to why in all of the circumstances there should be a general obligation that there is an expectation of a mixed statement of record of interview to be tendered. Your Honours, they are my submissions on behalf of the applicant.

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

MR MORTERS: Thank you, your Honours. Your Honours, the respondent’s threshold position is that is that these two appeals do not raise issues which require the granting of special leave. Apart from the divergence of opinion between the Chief Justice of South Australia in the matter of Helps and the obiter decision of his Honour Justice Peek in Barry, the cases do not demonstrate a difference in application of the law with respect to the admissibility of hearsay statements of the accused.

Her Honour Justice Kelly in Singh, from paragraphs 10 to 16, takes us through the various cases that have considered this issue. It is clear from that analysis that the thrust of those cases is about the prosecution picking and choosing between parts of interviews and those sorts of approaches to the adducing of evidence in the prosecution case that is objectionable.

This whole question about whether a prosecutor can elect not to adduce an interview in the first place does not really squarely get considered until his Honour Justice Kourakis, as he then was, deals with it in Barry. The respondent says that he deals with it through an appropriate analysis and arrives at the correct conclusion and obviously her Honour Justice Kelly who wrote the lead judgment in Singh adopts the position that his Honour Justice Kourakis adopted.

So, the respondent does not concede that there is some sort of difference across the jurisdictions in relation to the application of the law in relation to this matter. There is some anecdotal reference in various of the cases to differences in practices across jurisdictions but it is not supported by concrete examples. It is submitted that there is no basis for intervention by this Court in circumstances where the justification is that different jurisdictions have adopted different practices. Her Honour Justice Kelly deals with that at paragraph [16] of her judgment in Singh. That is at page 59 of the application book in Singh, where she says:

The central point of all of these authorities is that the admissibility of pre‑trial exculpatory statements by an accused is governed by the ordinary rules of evidence.

That is what the respondent submits needs to be focused on - application of the ordinary rules of evidence, and that will determine the proper application of practice in all jurisdictions.

GAGELER J: So as I understand it, you are saying that the special leave question has been addressed squarely only in South Australia and in the Northern Territory. Is that right?

MR MORTERS: Well, in obiter by his Honour Justice Peek in the decision of Helps, and on all‑fours in relation to that question in Barry.

GAGELER J: Right. So in the two jurisdictions where it has been addressed there are judges ‑ ‑ ‑

MR MORTERS: We have the same answer.

GAGELER J: The same answer by majority?

MR MORTERS: Yes.

GAGELER J: With different views being expressed by the judges.

MR MORTERS: Certainly by his Honour Justice Peek in obiter in Helps, and to some extent by her Honour Justice Blokland in the minority in the Northern Territory, but otherwise not considered in the same way that it is being considered before this Court in any other jurisdiction. It has always been a different question that the courts have been looking to, the unfairness that has arisen because of the selective approach that has been adopted by the prosecutor.

So for that reason, there is no basis for a grant of special leave. It does not need to be resolved by this Court. But if we focus on each of the matters before this Court themselves, firstly, the respondent’s submission in relation to Singh is that the information which the applicant points to as being inculpatory is not really inculpatory when one looks at that information in its totality in the record of interview.

KIEFEL CJ: Are you saying there is no inculpatory element to the record of interview?

MR MORTERS: Well, I am perhaps adopting the language of his Honour Chief Justice Martin in the decision of Flowers, which is another Northern Territory decision. In that case, even though that case has been referred to as an instance of an attempt to introduce an interview which was exculpatory, his Honour the Chief Justice talks about it as being generally exculpatory - and the location of that, I think, is paragraph [3] or paragraph [4] of his decision.

When this matter went to appeal, the Singh matter went to appeal, the respondent’s submissions in that matter took the court to the – we call them in the Northern Territory EROIs, electronic records of interview – EROI in Flowers and demonstrated a series of representations within that EROI which could similarly be considered as being inculpatory in the same way that the applicant is trying to categorise representations in the Singh EROI as being inculpatory.

So, just drawing your Honour’s attention to the submissions before the Northern Territory Court of Appeal, some of the things that Mr Flowers admitted to in his EROI – and this is not in the application book, I am sorry, your Honours – included that he lived at the unit where the child was alleged to have been abused, he had been drinking that day ‑ ‑ ‑

KIEFEL CJ: Where is this taking us?

MR MORTERS: Well, certainly to say that it was not contested on appeal that the Flowers interview had material within it that could well and truly have been characterised as being inculpatory. But it was accepted that, for the most part, looking at the interview in its totality, it was generally exculpatory. The respondent’s position is that is the same situation with respect to each of the interviews in this matter.

Certainly the Singh matter, where it was an agreed fact before the jury that the person who was in the taxicab and displayed on the CCTV from a taxicab at the time the offending was committed was the accused. The only inculpatory information that my learned friend, Mr Read, really points to in relation to the EROI of Singh is that he admits that it was him that was present.

So it really is not, on proper analysis, a matter which you could say constitutes an admission because it is not a statement against interest for the purposes of those proceedings because it was not even in contention. It had been admitted before the trial commenced. So it is properly characterised as an exculpatory interview, or generally exculpatory interview, to use the language of Chief Justice Martin – and therefore the ordinary rules of evidence applied, so out‑of‑court statement relied on for its truth ‑ ‑ ‑

KIEFEL CJ: Do you go so far as to say that these particular cases are not about mixed statements in records of interview at all?

MR MORTERS: That is the threshold position, yes, your Honour.

GAGELER J: I am sorry; how can you say that in the Nguyen Case?

MR MORTERS: It is harder in the Nguyen Case; I concede that. But if you look at it in its totality what is being branded as inculpatory in that case is statements to the effect “I engaged in this conduct but I engaged in this conduct because I was being attacked and I was acting in self‑defence”.

GAGELER J: The first question answered by the court in that case was to the effect that the record of interview would be admissible in evidence at the instance of the Crown. That shows it contains admission.

MR MORTERS: Well, it seems to have been accepted in the case law that has been referred to in both those decisions that the Crown can adduce exculpatory interviews, or generally exculpatory interviews, if they choose to do so. If the Crown elects to do so, and there is no opposition by the defence to the introduction of that material, then that material goes in. Of course there is going to be no objection by the defence in circumstances where the interview is, for all intents and purposes, exculpatory.

KIEFEL CJ: But whether they have that quality, when it is assessed by either a trial judge or an appellate court, has to be an objective assessment?

MR MORTERS: Yes.

KIEFEL CJ: It is not just what the prosecutor thinks.

MR MORTERS: Well, that is the second part of the argument. The respondent’s submissions in relation to the special leave application are that if one looks at each of the interviews in these instances they are properly characterised as generally exculpatory – looking at them in their totality. There really is not any information in them that one could say equals inculpation and that is probably going to be the situation where there is agitation in relation to the failure of a prosecutor to tender on the vast majority of instances.

KIEFEL CJ: That point was not taken in either of these cases before the court below, was it?

MR MORTERS: It was in Singh.

KIEFEL CJ: But not in Nguyen?

MR MORTERS: In submissions it was put.

KIEFEL CJ: In Singh?

MR MORTERS: I would have to go back to the submissions. I appeared in the Court of Appeal on both matters. My recollection is, yes, it was, your Honour. In both matters it was put that the interviews were exculpatory in nature and, therefore, on application of the ordinary rules of evidence there was no question as to their admissibility if ‑ ‑ ‑

KIEFEL CJ: I see.

MR MORTERS: If those rules were applied by the prosecutor.

GAGELER J: Let us just take the Nguyen matter for a moment.

MR MORTERS: Yes.

GAGELER J: There is a holding that is not sought to be challenged in an appeal to this Court to the effect that the record of interview is admissible. It contains sufficient admissions to be admissible, notwithstanding its hearsay context. Now, in that case, you have a trial and a retrial. You have two prosecutors. One chooses to tender and on the retrial the next prosecutor chooses not to tender. Is it your submission that it is entirely up to the prosecutor?

MR MORTERS: No, your Honour. The decision of the first prosecutor was erroneous and the interview should not have been tendered in that first trial.

GAGELER J: Why was it erroneous? As a matter of prosecutorial discretion it was erroneous, was it?

MR MORTERS: No, your Honour. The respondent’s position is, and that is probably more the substantive argument that I am going to make in due course, that either for all intents and purposes it was exculpatory in nature, and therefore not admissible under the rules of evidence ‑ ‑ ‑

GAGELER J: That has been held against you.

MR MORTERS: Well, with the greatest respect, I do not accept that it has been ruled as being admissible as clearly as your Honour would propose. But, alternatively, the prosecutor is entitled, and there is no obligation on the prosecutor, to look at the interview and come to the conclusion that it has some admissions and, therefore, the prosecutor is obliged to play it. That is probably the substantive argument that I will move to now, beyond the argument that I have made in relation to why special leave should not be granted.

KIEFEL CJ: Does the balance of your argument proceed upon the basis that there are mixed statements within each of the ‑ ‑ ‑

MR MORTERS: Accepting there are mixed statements in the Nguyen matter, the respondent’s submission is that there is no obligation on the prosecution to adduce evidence of such EROI and the respondent’s position is that ‑ ‑ ‑

KIEFEL CJ: Surely the obligation arises when fairness requires.

MR MORTERS: Your Honour, the respondent’s answer to that is that it is not a question of unfairness but more a consequence of not so much disadvantage but ‑ ‑ ‑

KIEFEL CJ: The prosecutorial reliance upon aspects of evidence.

MR MORTERS: It is just a consequence of the rules of evidence, your Honour. It may not be to the advantage of any party that exculpatory statements which are sought to be relied on for their truth are not admissible. But because of that rule, that does not result in an unfairness, as the Court would appreciate it, in a particular proceeding. There is a contrivance, the respondent would say, with the greatest respect to my learned friends, in equating the principles that flow from cases such as Apostilides, Whitehorn and Kneebone with the principle that flows from Soma.

It is the irony of that situation which results in there being able to be put forward an argument that somehow or other the prosecution is obliged to adduce evidence of this exculpatory material. Apostilides, Kneebone and Whitehorn and other cases such as those are specifically concerned with the prosecutor’s obligation to call witnesses and the unfairness that results from a failure to call witnesses.

The defendant in a criminal proceeding is not a witness that is available to the prosecution – 17(2) of the Uniform Evidence Act makes that absolutely clear – and certain consequences flow from that. Kneebone talks about how the prosecutor will be excused from calling a witness from an unfairness arising if the prosecutor satisfies himself that the witness that purports to have evidence in relation to a matter is unreliable. That was the situation that presented in Kneebone.

Of course a prosecutor does not accept the information related by the accused as to a denial of commission of an offence, otherwise the prosecution would not be being run. It legitimately falls within that exception that is established by Kneebone. But even further, the sorts of opportunities or the sorts of remedies that are provided by the Uniform Evidence Act where a prosecutor is obliged to call a witness that might be unfavourable to the prosecution case are not available in relation to the accused. So there is no opportunity to have that witness declared unfavourable under section 38 of the Uniform Evidence Act or to test that evidence.

The result will be that the jury will receive information through a police interview, and that is an interview where there is an obvious prohibition on a police officer engaging in cross‑examination or any other practices which are permitted to test the evidence in court proceedings, accepting that the police officers involved in the practice of obtaining information from the accused in relation to an allegation of offending – no more than that, so the sorts of opportunities that present by virtue of section 38 of the Uniform Evidence Act do not come into play.

That means that, as far as the jury is concerned, that information never gets tested. Obviously the judge is required to give the jury a direction in accordance with the decision in Mule’s Case about what weight should attach, but it is not the same as having the opportunity to test that evidence. So those sorts of reasons are the reasons why the principle established in Apostilides and other cases do not readily transfer to a situation where we are not talking about a witness but we are talking about the accused.

My learned friend’s argument is that there is an obligation on the prosecution to adduce the information EROI because of the principles in Apostilides, et cetera but, having done that, the prosecutor is then obliged to introduce all the exculpatory material contained in the interview because of the rule in Soma. There is no dispute that the rule in Soma is accepted. The prosecution must accept the good with the bad. If the prosecution elects to play the inculpatory material then they are obliged to play the exculpatory material.

Implied in the decision of Soma – I will just find the paragraph for you – it is quite clear that the court recognises the discretion on the part of the prosecution - paragraph [31], their Honours Chief Justice Gleeson and Justices Kirby and Hayne say:

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 the 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.

So it is quite clear, the respondent submits, that the majority in the High Court were accepting the existence of this discretion by the prosecutor. If the prosecutor elects to adduce the incriminating material then it is bound to also adduce the exculpatory material. There is no difficulty with that ruling. The respondent says that clearly establishes what the position at law is. The submissions by my learned friends and the written submissions of NAAJA really do not carry any weight when they suggest that some sort of uncertainty results as a consequence of the fact that the prosecutor has a discretion.

If the prosecutor comes to the conclusion that for the most part an interview is exculpatory and makes the decision that he is not going to play it then that is the end of the matter. There is no scope for any cross‑examination on any material that is contained in the interview.

KIEFEL CJ: I see the light, Mr Morters.

MR MORTERS: Thank you, your Honour.

KIEFEL CJ: Thank you. Mr Abbott, Mr Read, we do not need to hear from you in reply. There will be a grant of special leave in this matter. What is your time estimate?

MR ABBOTT: I would have thought an hour for us.

KIEFEL CJ: Within the day? Would all the matters be completed within the day?

MR ABBOTT: Yes.

MR READ: Yes.

KIEFEL CJ: Would you please ensure that your instructing solicitors obtain a copy of the directions from the Deputy Registrar. Thank you.

AT 10.29 AM THE MATTERS WERE CONCLUDED