McNamara v The King [2022] HCATrans 185 (21 October 2022)

Last Updated: 21 October 2022

[2022] HCATrans 185

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S203 of 2021

B e t w e e n -

GLEN PATRICK McNAMARA

Applicant

and

THE KING

Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 21 OCTOBER 2022, AT 12.30 AM

Copyright in the High Court of Australia
KIEFEL CJ: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR G.O’L. REYNOLDS, SC appears with MR G.D. WENDLER for the applicant. (instructed by Kings Law Group)

MS S.C. DOWLING, SC appears with MR E. BALODIS for the respondent. (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, before I commence, my client needs an extension of time. I understand that extension is not opposed.

KIEFEL CJ: Is that correct, Ms Dowling?

MS DOWLING: Yes, your Honour, thank you.

KIEFEL CJ: Yes, you have that extension.

MR REYNOLDS: Thank you, your Honour. Your Honours, this case raises, I submit, a number of issues of law which would justify a grant of special leave. The principal issue – the first of those issues is an issue relating to the construction of section 135 of the Evidence Act. As your Honours will have seen from the submissions, there are two divergent New South Wales Court of Criminal Appeal decisions on this question.

The first, a case of R v Henry, which is referred to by the Court of Criminal Appeal at paragraphs 504 to 505, is a judgment of Justice Nettle when he was sitting on the New South Wales Court of Criminal Appeal as an acting judge. He held that on a joint trial of two accused section 135 of the Act does not permit the trial judge to prevent an accused from adducing exculpatory evidence in his own case because it causes prejudice to the other co‑accused. Now, we submit that Justice Nettle’s construction of the provision is correct.

The second decision is, of course, the judgment of the Court of Criminal Appeal in this case. Now, we submit that this issue, this is the primary issue, warrants a grant of leave, first of all because, as your Honours will have seen from paragraph 495 of the Court of Criminal Appeal’s judgment, this is, as they put it:

a very important question of statutory construction –

I add, a question which arises in a majority of Australian jurisdictions. Now, secondly, as your Honours have already heard, there is a divergence of views between these two New South Wales Court of Criminal Appeal decisions. Thirdly, because we submit that the determination of this issue relating to section 135 is likely to raise other issues.

If I can proceed to those other issues which we say are also important questions, the first of these is that your Honours will have seen from the judgment of the Court of Criminal Appeal at paragraph 530, that there is reference there – this is at page 593, at about point 3 on the page, to English cases – particularly in the Privy Council – which refer to an:

unfettered right of an accused in a joint trial to advance his or her case in any way –

We say that that is a right which is referred to in a number of cases. It is also – if your Honours go to paragraph 534, on page 594, at about point 3, your Honours will see a quote from the Privy Council on appeal from Victoria saying:

“it is fundamental to the administration of criminal justice that a person accused must be completely free to meet the charge against him by all legitimate and relevant means”.

We submit that the existence of this right, which one might call a sort of small‑c constitutional right, supports our construction of section 135 and that this is a common law principle which has not been ousted by section 9 of the Evidence Act. That provision is at page 647 of the appeal book, at about point 7.

On this issue, also, there is a split, this time in the Victorian Full Court. If your Honours look at paragraph 534 of the Court of Criminal Appeal’s judgment in this case, your Honours will see the reference there to the Full Court decision in Lowery which was approved by the Privy Council. In that case, it was held that this right exists. But, if your Honours look to the next paragraph – and I will not read it out – Justice Jenkinson in another Full Court in a case of Darrington, found that this right of an accused was subject to a number of qualifications.

We submit that this issue also, supports a grant of leave – first of all, to resolve the split in the Victorian Full Court but, perhaps, more importantly, because it is an important question in its own right, which we submit is an issue relevant to the construction of section 135.

KIEFEL CJ: Mr Reynolds, as you say, it is a question of construction of section 135, and I think it is put against you that as a matter of construction, particularly if you read it with section 136, the reference to parties clearly extends to a co-accused. I think other sections of the Evidence Act are also relied on.

MR REYNOLDS: Your Honour, we say there is a great deal of difficulty with that submission that is put against us. What we submit is that there is a – and this is referred to in the CCA’s judgment – a general law principle that when there are two co-accused, there are two separate cases.

We submit that that common law principle has not been excluded by the Evidence Act under section 9 and is directly relevant to the construction on both of these provisions, both 135 and 136. So, if that proposition is correct – and we submit that it is – the consequence is that neither accused is a party in the case by the Crown against the other. So, the consequence of that will be ‑ ‑ ‑

GORDON J: Mr Reynolds, may I ask a question about that?

MR REYNOLDS: Of course, your Honour.

GORDON J: In relation to the question of construction, if you read it that “party” can include “co-accused”, does that mean – and that is the proper construction, and that is the debate you were raising, or the issue you are raising – is one answer to that to say, in the context where you have defences which are inconsistent for “co-accused”, you are really looking at separate trials? And that in effect resolves the question of construction?

MR REYNOLDS: I am sorry, your Honour is putting that against me?

GORDON J: Yes, I am.

MR REYNOLDS: Well, your Honours, we say that if you come to the construction of both of these provisions, bearing in mind what we say is the general law position, what that means is that one co-accused can, under 135 completely prevent evidence from being used against him in his case, and, under 136, he can limit the use to which it is put in his case, but what he cannot do is stop it from being used by the other co-accused to exculpate himself.

So, the word “party” here, we submit, will only cover, relevantly, in each of those two cases, both the Crown and the relevant accused but not the other co-accused. We say that follows from the fact that all crime is personal and individual, and from the history of the way the common law has developed is that a case can be pleaded against two co-accused. There can obviously be joint hearings involving two co-accused and there can be evidence which is jointly led against each. But none of those procedural changes alter the fundamental position that there are two separate cases.

So, for example, we do not have Mr Rogerson here today. If he were a party to my client’s case, he would, on one view, have to be joined as a necessary party to the appeal. Nor would any res judicata flowing from an acquittal or conviction in respect of one accused apply to the other.

So, if one bears that general law position which, as I submit, going to section 9 on page 647 of the application book, has not been ousted by this provision, then it is very clear that this operates these two sections in exactly the same way as we submit the common law operates. And that is the third issue that I wanted to take your Honours to, because the second issue that I raised about whether there is an untrammelled right or virtually untrammelled right to adduce evidence in your own case to exculpate yourself, that is very closely bound up with the question of what the common law position is on the issue raised by section 135.

Now on that issue also, there is a split between intermediate courts of appeal. If your Honours go to paragraph 531 of the CCA decision, your Honours will see reference there to two Victorian cases which say that there is a discretion to exclude, but if your Honours go to paragraph 504 to 505, your Honours will see, and also to paragraph 541, that there are cases in New South Wales, South Australia, New Zealand and the UK which say that there is no such discretion to exclude. Now, that issue is, we say, relevant in its own right in this case. But, obviously, it is particularly relevant in those jurisdictions which do not have the Evidence Act in this country.

So, we submit, three fairly important questions arise on an appeal if leave were to be granted. There is a fourth issue, I submit, which may arise – would not necessarily arise – and that is the appropriate standard of review to be applied on an appeal from a trial judge’s exercise of discretion under section 135. Your Honours will have seen from the submissions and from the Court of Criminal Appeal’s judgment that there are two views on that. In this case – this is at paragraph 544 – the Court of Criminal Appeal adopted what might be called a correctness standard, but at paragraph 545, the Court of Criminal Appeal note that there are a whole lot of New South Wales Court of Criminal Appeal decisions which have adopted a House v The King standard.

So, there is a serious split on that issue. The Court would not necessarily have to determine that issue, but I note that the Crown has not disclaimed reliance on House v The King on a notice of contention, and, of course, your Honours may wish to raise this issue in dealing with our appeal
in any event. So, to sum up, we submit there are four important questions of law which are likely to arise.

It may also be that there is a fifth. I mentioned that there was a Privy Council case on the second issue on appeal from Victoria, and there is still an outstanding unresolved question about the precedential status of Privy Council cases in relation to the State courts – and that is an issue which your Honours might care to pronounce upon in the same way as this Court pronounced on that issue in Cook v Cook in 1986 in relation to the standing of decisions of the UK Court of Appeal.

All these issues, particularly the first, are important questions. And as I said, the Court of Criminal Appeal said the first question was a very important question. On all four of these issues, there are conflicts either within an intermediate court of appeal, or between the intermediate courts of appeal in different states. These issues all arise very neatly on the case.

So far as the remaining issue, that is the sentence issue, is concerned, we rely on our written submissions. If the Court pleases, those are our submissions.

KIEFEL CJ: Mr Reynolds, in relation to that last matter – the sentencing question under ground 3 – what is the question of principle that is involved? It is just a question of whether or not a sentencing judge can adopt a two‑stage approach to life sentencing under section 61.

MR REYNOLDS: That is it, your Honour. Plus, if I may say so, what we submit is a great injustice in that this man has been sentenced without any parole period to apply for the rest of his life. And we submit that whatever one says about this case, it did not warrant a sentence of that kind, but I cannot put it any higher than that, your Honour.

KIEFEL CJ: If the question is as you agreed it is – the two-stage approach – what is put against you is that the Court of Criminal Appeal itself said that the sentencing judge did not employ that approach. The sentencing judge had regard to all the circumstances.

MR REYNOLDS: Yes. Your Honour, we submit that that is not a correct construction of what the trial judge said, but I need not detain your Honours further on that particular point.

KIEFEL CJ: Yes, thank you, Mr Reynolds. Yes, Ms Dowling.

MS DOWLING: Thank you, your Honours. The context in which the issue of construction of section 135A of the Evidence Act stands to be determined is one that is very familiar to the criminal law – that is, a joint trial where two co‑accused seek to run cut‑throat defences – each seeking to inculpate the other. Before I turn to the proper construction of section 135 – which we say was meticulously and correctly done by the Court of Criminal Appeal – I would like to, if I may, briefly, remind your Honours of that broader context.

This Court has observed in cases such as Webb v The Queen, that there are strong reasons of policy and principle as to why persons charged with committing an offence jointly ought to be tried together. This is especially the case where one accused seeks to cast blame on the other – for the obvious reasons of avoiding inconsistent verdicts and the desirability that the jury hears all of the evidence relevant to the charged offence.

In a criminal trial, both the common law and, under the Criminal Procedure Act 1986 (NSW) – regardless of the number of accused, there can only be one indictment. Further, in a joint trial, all evidence led by the Crown will be admitted against each accused unless there is an order limiting the use of that evidence in respect of a particular accused. As the CCA noted at paragraph 520, appeal book 590, with reference to the decision of this Court in Webb, in proceedings under the Evidence Act, the source of that power – to make such limiting directions – appears to derive from section 136, which also refers prejudice to a party.

So, while it is correct to say that criminal liability is joint and severable, that concept, in our submission, is not directed to the evidentiary mechanisms by which joint trials are conducted. In New South Wales, those mechanisms are found within the Evidence Act. A further aspect of the context in which this application stands to be considered is that, notwithstanding that an accused may be jointly charged with a co‑accused, it is always open – as your Honour Justice Gordon, put to my learned friend – to the trial judge to direct that the accused be tried separately. That is a matter of some relevance to the argument that the applicant seeks to advance in this Court.

Turning now to the issue of construction of 135, as the CCA explained, the Evidence Act accommodates the often‑competing interests of co‑accused through various different provisions. In particular, the discretions conferred by sections 135 to 137 of the Act provide the tools by which co‑accused can fairly be tried together and their competing interests balanced. As the CCA noted at 511, in terms of the construction of 135, the “immediate context” of 135 is “the other provisions” of the Act itself. At risk of making the trite submission, your Honours, the Act falls to be construed as a whole with the same meaning ascribed to the same terms throughout the Act.

In the CCA and early this afternoon the applicant argues that where there is a joint indictment there are, in reality, two trials proceeding inter partes only as between the Crown and each accused. However, consideration of the Evidence Act clearly contradicts this proposition insofar as it relates to the admission of evidence and the regulation of trial procedure. An example of that given by the CCA is section 27, it permits a party to “question any witness”. This includes the witness called by a co‑accused. This section is the source of the critically important right of one co‑accused to cross‑examine another co‑accused in a joint trial.

Another example given by the CCA at paragraph 517 is the operation of the exclusion of admission as against third parties by operation of section 83. By comparison with the operation section 83 the construction contended for by the applicant was correctly described by the CCA as giving rise to the surprising result that in a joint trial the Act could operate so that an admission made by one co‑accused would not be admissible against another co‑accused but section 136 would not be available to limit the use of otherwise highly prejudicial material, and clearly that interaction ‑ ‑ ‑

GORDON J: Ms Dowling, this line of argument which identifies potential practical inconsistencies if “party” is read as limited to one co‑accused rather than both on the indictment, is it not the issue that I raised with Mr Reynolds that the question was whether or not there should have been separate trials at the point at which the defence that was sought to be made by Mr Reynolds’ client was unable to be put? So, that we can have this question of construction about what 135(a) means in this context and we can have it in the context of the Act as a whole but there are, I think, two aspects to the matter, are there not?

MS DOWLING: Yes, and the point that the Crown seeks to make is that the construction of the Act and the operation of the Act does need to be considered in the context of what tools are available to the trial judge to effect fairness between co-accused. In a joint trial there will be cases where one co‑accused seeks to lead evidence in support of their case, where the probative value of that evidence is substantially outweighed by the prejudicial effect upon another accused. In such a case it is possible to imagine a situation where the exclusion of that evidence operates unfairly to the party who is seeking to adduce the evidence.

Such a situation might strongly point – strongly support a separate trial application, which, of course, can be made at any point in the trial.

GORDON J: Here there was an application made – was there not, initially – which was rejected?

MS DOWLING: It was not made on the basis of the exclusion of this evidence.

GORDON J: No, no. But there was an application made for a separate trial at the outset.

MS DOWLING: That is right. However, that – the refusal of that application was not appealed, nor was the application renewed when this section 135 ruling was made. So, that failure to renew the application is, in our submission, a powerful recognition of the appropriateness of the ruling. In the absence of that application, it fell to sections 135 and 136 to preserve the correct balance as between the parties.

Your Honours, we have set out in our written submissions, and we run through the various different provisions of the evidence referred to by the CCA at appeal book 590. They are critical indicators, in our submission, that the Evidence Act is intended to – that the phrase “a party”, when used in the Act, throughout the Act, clearly refers to a co‑accused. I refer your Honours to section 20 and 41 as well as 136 of the Act.

Moving beyond the immediate construction of the Act, that the Act was intended to balance the rights of multiple co‑accused in a joint trial, and the related proposition that section 135 does apply to a co‑accused, is also supported by reference to the ALRC report that led to the introduction of the Act, which is referred to at appeal book 591, where the authors of the report noted that:

“if no judicial discretion exists in this area it is suggested that it should be introduced, so that the court, in considering the legitimate interests of the two accused, can balance the value of the evidence to one against the dangers to the other”.

Just returning to the point I have made before, whilst criminal liability is individual, procedural rules and the rules of evidence take account of the nature of a joint trial. The procedure of a multi‑accused trial does not involve separate trials against each accused or separate proceedings, such as the meaning of the word “party” should be interpreted to exclude co‑accused.

Your Honours, in our submission, it was not necessary for the CCA to look to the common law and it would not be necessary for this Court to do so. However, in relation to the contention that the common law as at 1995 did not include a discretion to exclude evidence on the basis of unfair prejudice to a co‑accused, we say that that is not correct. It is addressed by the CCA at appeal book 592, where the Court considered the decision of the Victorian Court of Appeal in Darrington and McGauley. I refer your Honours to appeal book 594, and the extraction there by the CCA of the reasons of his Honour Justice Jenkinson, and, in particular, the three main policy considerations articulated by him that support the existence of the discretion in a trial judge where evidence is sought to be led in a joint trial by one accused that is prejudicial to another.

In our respectful submission, the applicant’s reliance on the obiter dicta remarks of his Honour, Acting Justice of Appeal Nettle – as his Honour was in Henry – with the deepest of respect, is misplaced. As the CCA noted at paragraphs 506 and 538 to 539, in quite a detailed analysis of that judgment, his Honour’s reference and reliance in Gibb v McKenzie in the judgment of Henry was, with the greatest of respect, incorrect and his judgment in Henry has not been followed in the New South Wales Courts.

Before I leave the conviction grounds of appeal, I just wish to observe that the suggestion that the current state of the common law could shed any light on the intention of the legislator in 1995, which appears to the be the submission made in writing is, with respect, not sustainable. In terms of the substance of the ruling, in our submission, the trial judge’s decision to exercise the discretion in Rogerson’s favour was correct. Evidence that just after shooting ‑ ‑ ‑

KIEFEL CJ: Ms Dowling, the applicant’s ground 2 – which I think you are dealing with now – obviously, proceeds upon an alternative basis to ground 1 – that is, it assumes that the construction of section 135 is as you contend.

MS DOWLING: Yes, that is correct, so they are in the alternative.

KIEFEL CJ: Well, do you say that affects whether or not we should grant leave in relation to the second ground?

MS DOWLING: Thank you, your Honour, the second ground clearly does not raise any point of principle. It is the application of that discretion by the trial judge and its endorsement by the Court of Criminal Appeal, and there is no issue of general importance to the State courts of Australia raised by this second ground of appeal. In our submission, the finding of limited probative value was well available to the trial judge and, similarly, the prejudice to Mr Rogerson is . . . . . and the correctness of that decision really cannot be doubted, in our respectful submission, if one assumes that 135 it does enable the trial court to do that.

Your Honours, if I may now turn to the sentence grounds. As the majority of this Court in Markarion cautioned, it is not useful to ask a general question like, was there a staged sentencing process? Because the expression may mean no more than the reasoning adopted by the sentencer can be seen to precede sequentially. And the conclusion that a sentencer has reasoned sequentially, of itself, does not reveal error. As your Honours are well aware, the vice identified in Markarion and later in Muldrock was the adoption of a mathematical approach to sentencing and a failure to engage in a process of instinctive synthesis.

Turning to the proper operation of sections 61 and 21 of the Crimes (Sentencing Procedure) Act, as always, the inquiry starts with the language of the statute which, of course, was not the language that was incident in either Markarion or Muldrock. As the CCA explained at appeal book 626, paragraph 636, the operation of sections 61(1) and 61(3) and also 21(1) of the Crimes (Sentencing Procedure) Act, can only sensibly be reconciled through sequential process.

For the exercise contemplated by section 21(1), that is, the question of whether a determinate sentence should be imposed, for that question to arise there must first be a situation where, by a statutory provision, an offender is made liable to imprisonment for life and, although 61(1) is not a . . . . . provision per se, it mandates that a sentence of life imprisonment should be imposed on a person convicted of murder if the court is satisfied that level of culpability in the commission of the events is as stipulated by that subsection. So, there first must be an assessment that the level of culpability is such that a life sentence is warranted, having regard to the four indicia in 61(1) before one can sensibly apply 21(1). And nothing, in my respectful submission, in Markarion or Muldrock prohibits such an exercise.

Logically, a determination of the level of culpability for the purposes of section 61(1) must occur before consideration of whether a determinate sentence less than life imprisonment should be imposed. And this involved no departure from the conventional approach to instinctive synthesis, where an assessment is made as to the objective gravity of the offence, taking into account all relevant factors that informed that assessment.

Because 61(1) does not include all of the subjective features of an offender that may be relevant to the exercise of the discretion preserved by 21(1), it is proper for those matters to be considered before a life sentence is imposed. And that is the so-called second stage, referred to in the Court of Criminal Appeal at paragraph 634, appeal book 626.

In our submissions, the five propositions set out by the CCA at paragraph 626, are, with respect, clearly correct; and in accordance with an orthodox approach to statutory construction and also to sentencing. In relation to the application of those principles to the facts of this particular offending, we rely on our written submissions. Your Honours, those are the submissions of the Crown.

KIEFEL CJ: Thank you, Ms Dowling. Mr Reynolds, do you have anything in reply?

MR REYNOLDS: Yes, your Honour. The submissions which my learned friend addressed on what I have called the first issue really amount to a suggestion that the decision of the Court of Criminal Appeal is not attended by sufficient doubt. Now, in response to that, we first of all respectfully remind your Honours that Justice Nettle has already accepted our construction so that a submission that our construction is not attended by sufficient doubt is difficult.

The second thing that I would say is my learned friend refers to a number of sections in the Evidence Act but did not direct any submissions towards the key point that we were making as a matter of construction, which is that all of these so‑called difficulties with these sections fall away if one approaches those sections in the light of the principle which I have articulated, namely, that where there is a trial involving two accused, there are two separate cases and each has a separate list against the Crown.

Now, if that proposition is correct, these difficulties fall away. So that, for example, if we go to sections 135 and 136, which are in the application book at pages 693 to 694, the effect of – if one approaches those sections in the light of the principle we rely on, and if one refers back to page 647, to section 9 which says that “This Act does not affect” other principles or rules of the common law unless they are ousted “expressly or by necessary intendment”.

If one goes to sections 135 and 136 in the light of our principle, then there is no difficulty, no difficulty at all. What one has is a joint hearing of two separate cases and an accused is free in respect of the evidence which is to relate – or is admitted in his own case to adduce evidence and there is no right of the other accused, who is not a party to his case, to object to him adducing that evidence in his case.

What the co-accused can do under section 135 is stop it being used against him completely, because it is not admitted against him, and he can also ask for the evidence to be limited under 136 in its use against him in the alternative. So, that deals with these two separate cases, and if one approaches it in that way, one can have a fairness to both accused, bearing in mind that principle.

Now, there has been some emphasis on the possibility of separate trials. Can I say this about that proposition? Although the matters which we raised will sometimes be obviated by an order for separate trials, that will not always be the case. One obvious situation where it will not be is
where the problem is not foreseen or anticipated by counsel or the solicitors for the accused. That can create the sort of problem which we have here, which we submit is likely to arise from time to time. So far as the Law Reform Commission is concerned, the Court of Criminal Appeal referred and dealt with that at paragraph 529, which is at page 592. They said that that reference did:

not greatly advance the issue.

So far as – and I will finish on this note – the exercise of discretion under section 135 is concerned, my learned friend did not disclaim reliance on a notice of contention on the House v The King standard, so your Honours may assume that that may arise. So far as the merits are concerned, we submit that any prejudice to the co‑accused could have been dealt with by stronger directions, and that this evidence was obviously of high probative value from my client’s point of view – highly exculpatory, because the issue of duress was much stronger on his case if the threats that were made to kill him were made after it had been revealed and admitted by Mr Rogerson that he had killed six other people.

If the Court pleases, those are my submissions.

KIEFEL CJ: Thank you. The Court will adjourn to consider the course that it will take.

AT 1.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.11 PM:

KIEFEL CJ: There will be a grant of special leave to appeal, limited to the first ground, namely, that referred to in paragraph 3 of the application for special leave. What is your estimate of time, Mr Reynolds, for the hearing of the appeal?

MR REYNOLDS: It is possible it would finish in half a day, but I would not like to say that it will.

KIEFEL CJ: Yes, thank you. Do you agree with that, Ms Dowling?

MS DOWLING: I think it is more like a day, your Honour.

KIEFEL CJ: Very well, thank you. The Court will now adjourn until 1.30 pm.

AT 1.11 PM THE MATTER WAS CONCLUDED