Fulford, Georgina --- "Case Note: Nguyen V the Queen (2020) 269 Clr 299" [2023] WAStuLawRw 2; (2023) 6 Western Australian Student Law Review 16

• CASE NOTE: NGUYEN V THE QUEEN (2020) 269 CLR 299

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CASE NOTE:
NGUYEN V THE QUEEN (2020) 269 CLR 299

GEORGINA FULFORD^[*]

PROSECUTORIAL DUTY OF FAIRNESS—ADMISSIBILITY OF ‘MIXED’ STATEMENTS—ALL AVAILABLE, COGENT AND ADMISSIBLE EVIDENCE—FULLY AND FAIRLY—MISCARRIAGE OF JUSTICE—MIXED RECORD OF INTERVIEW—OBLIGATION TO TENDER—PROSECUTORIAL DISCRETION

ABSTRACT

This is a case note on the High Court decision in Nguyen v The Queen (2020) 269 CLR 299. The judgment explored the scope of the prosecution’s duty to put its case fully and fairly. The majority held that, in order to ensure a fair trial to the accused, the prosecution has a duty to adduce all available, cogent and admissible evidence. Alternatively, the concurring judgments of Nettle and Edelman JJ argued that the prosecution should be afforded greater discretion, within the bounds of their ongoing duty to act fairly to the accused. Thus, while the right to a fair trial is deeply ingrained in the Australian justice system, the judgment in Nguyen v The Queen opens the discussion as to what exactly constitutes a ‘fair trial’ in criminal proceedings.

I INTRODUCTION

The relatively recent High Court judgment of Nguyen v The Queen^[1] explored the scope of the prosecution’s enduring duty to put a criminal case fully and fairly. Specifically, the case raised questions as to, firstly, whether ‘mixed’ statements (being a statement containing both inculpatory and exculpatory statements) in a recorded interview were admissible in the Crown’s case; and secondly, whether the Crown was under a duty to tender that evidence. As will be discussed in some detail, the majority—consisting of Kiefel CJ, Bell, Gageler, Keane and Gordon JJ—defined the prosecution’s duty to put the case fully and fairly as involving a duty to present all available, cogent and admissible evidence. The two concurring judgments of Nettle and Edelman JJ challenged the contention that there is some pre-existing duty to present all available evidence, arguing instead that the prosecution has full discretion to decide what evidence they will adduce at trial, within the bounds of their ever‑present duty to act with fairness to the accused.

The right to a fair trial is at the core of our criminal justice system. However, this 2020 judgment revealed that, in practice, there is still uncertainty as to how that right is to be secured in a criminal trial: is it enough that the prosecution is allowed complete discretion to adduce whichever evidence they deem necessary, limited only by their ongoing duty to act fairly to the accused? Or can fairness only be guaranteed by way of the prosecution adducing all available, cogent and admissible evidence? The judgment in Nguyen v The Queen highlights that the precise definition of a ‘fair trial’ is perhaps not as well‑established as one may assume, nor the right to a fair trial as well protected. While the three judgments ultimately reached the same conclusion, that the appeal should be allowed, the minority judgments of Nettle and Edelman JJ open the door to a discussion which is yet to be had—and one which arguably offers far greater flexibility to the prosecution than the decision made by the majority.

II FACTS

The appellant, Mr Nguyen, stood trial before a jury in the Supreme Court of the Northern Territory, charged on indictment with offences against the Criminal Code Act 1983 (NT). Before answering any questions in his police interview, the appellant was given a special caution via an interpreter, as English is not his first language. The appellant summarised his understanding of the caution as: ‘whatever you ask and whatever I answer will be taken as evidence in the court’.^[2] The subsequent interview contained both inculpatory statements in the form of admissions, and exculpatory statements, including a claim to self-defence. In Mr Nguyen’s first trial, the prosecution tendered the entire video recording of the police interview. The jury was unable to reach a verdict and a retrial was granted. Prior to the retrial, the prosecutor advised the Court that the Crown would not tender the recorded interview for ‘tactical’ reasons.^[3] The prosecutor advised that Mr Nguyen would not be cross‑examined on that account if the exculpatory statements were given in evidence and that Mr Nguyen, if he so chose, could give evidence about the matters contained in the recorded interview.^[4] The retrial was stayed while the following two questions were referred to a Full Court of the Supreme Court of the Northern Territory:

1. Is the recorded interview admissible in the Crown case?

2. Is the Crown obliged to tender the recorded interview?

The Full Court answered ‘yes’ to question 1, and ‘no’ to question 2,^[5] on the grounds that the prosecution has full discretion to decide what evidence to adduce at trial, and that there exists no general principle that requires a prosecutor to tender evidence of this kind.^[6] Mr Nguyen sought to appeal this conclusion to the High Court. The High Court allowed the appeal, finding that the recorded interview was admissible and that the Crown was obliged to tender it. Below is an outline of the High Court of Australia’s consideration of both questions.

III QUESTION 1: WAS THE RECORDED INTERVIEW ADMISSIBLE IN THE CROWN CASE?

Only the majority discussed question 1 in detail, although the minority judgments of Nettle and Edelman JJ did not disagree with the majority’s response. In answering the first question, the majority made primary reference to s 81(2) of the Evidence (National Uniform Legislation) Act 2011 (NT), which provides that out-of-court statements will be exempt from the rule against hearsay evidence if they are ‘made in relation to an admission at the time the admission was made, or shortly before or after that time’.^[7] In applying this provision to Mr Nguyen’s case, the majority held that the exculpatory statements Mr Nguyen made in the same interview that contained admissions would fall comfortably within the scope of this exception.^[8] Therefore, the High Court concluded that the recorded interview was admissible in the Crown case, in agreement with the Full Court. As aforementioned, this finding was not contested by either Nettle J or Edelman J in their separate judgments.

IV QUESTION 2: WAS THE CROWN OBLIGED TO TENDER THE RECORDED INTERVIEW?

The second question gave rise to contention between the majority and minority judgments. The majority interpreted the concept of an ‘obligation’ to tender certain evidence as an aspect of the prosecution’s duty to present the Crown’s case fully and fairly before the jury.^[9] Both Nettle and Edelman JJ agreed that the existence of this duty is uncontroversial. However, their Honours disagreed as to the precise extent of that duty, in particular as to whether that duty required the prosecution to adduce all available, cogent and admissible evidence.

A Majority Judgment

In answering the first question, the majority found that the Crown was obliged to tender the recorded interview as evidence. To substantiate that decision, the majority relied on Mahmood v Western Australia.^[10] In Mahmood, the High Court found that the prosecution is generally expected to adduce admissible evidence of mixed statements made by an accused in a police interview,^[11] so as to avoid adverse speculation by the jury as to what the accused may have initially told police.^[12] However, the majority in Nguyen went further. Kiefel CJ, Bell, Gageler, Keane and Gordon JJ asserted that, as part of their duty to present the Crown’s case fully and fairly, the prosecution is required to tender ‘all available, cogent and admissible evidence’,^[13] unless there is some valid reason not to do so.^[14] The majority found that the admittedly ‘tactical’^[15] decision of the prosecution not to adduce the video record in this case was not an example of a valid reason to refrain from adducing the evidence. Thus, in the absence of any valid reason to the contrary—for instance, if statements in the evidence had been demonstrably false^[16]—the prosecution was bound to adduce the entirety of the admissible evidence available to them.

The conclusion of the majority is supported by Whitehorn v The Queen.^[17] In Whitehorn, Deane J held that a failure by the prosecution to call a witness who ought to be called, or to provide some ‘acceptable explanation’ for not doing so, has the potential to result in an unfair trial and a miscarriage of justice.^[18] The prosecution has a duty to avoid that potential for a miscarriage of justice, even before the trial takes place. Justice Dawson held that it is therefore possible to speak of a prosecutor having a duty, at a point prior to trial, to call all available witnesses as part of their function to ensure fairness to an accused person.^[19] The majority in Nguyen relied on Dawson J’s judgment in Whitehorn to argue, by analogy, that the prosecution holds a similar duty, prior to trial, to tender all available evidence, unless the circumstances provide a positive reason for not doing so.^[20]

Consequently, the majority concluded that the prosecution had failed to tender all admissible and available evidence, without due reason for doing so, and as such, they had failed to put their case fully and fairly. The majority found that the appeal should be allowed. The High Court ordered that the answer given by the Full Court of the Supreme Court of the Northern Territory to the second question be set aside, and that the question instead be answered ‘yes’.^[21]

B Concurring Judgments

1 Nettle J

The first concurring judgment, of Nettle J, agreed with the majority that the prosecution was obliged to tender the recorded interview but offered a different explanation for this conclusion.^[22] Justice Nettle agreed that the prosecution’s duty to present the Crown’s case fully and fairly will ordinarily require the tender of mixed statements by the accused, so as to avoid adverse speculation by the jury.^[23] However, Nettle J did not agree that the duty necessarily extends to presenting ‘all available, cogent and admissible evidence’.^[24] His Honour referred to the decision in Ratten v The Queen,^[25] where the High Court held that ‘a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists’.^[26] Thus, Nettle J concluded that there is no pre-existing, prima facie duty to adduce all available, admissible evidence. Instead, each case must be treated as unique and the prosecution must exercise discretion in adducing evidence that is relevant to the individual facts, while ensuring that the accused is treated fairly.^[27] Any perceived unfairness caused by the decision not to adduce particular evidence at trial may then be examined on appeal.^[28]

Despite disagreeing with the broad precedent employed by the majority, Nettle J agreed with the orders proposed, on the basis that the decision not to adduce the record of interview was likely to cause adverse jury speculation at trial which may have given rise to a miscarriage of justice.^[29]

2 Edelman J

Justice Edelman also ultimately concluded that the appeal should be allowed, but like Nettle J, disagreed with the majority in relation to the content of the duty owed by the prosecution. Justice Edelman contested the literary expression of the second question. He argued that the wording implies the existence of some free-standing legal obligation to tender particular evidence at a point prior to trial. His Honour argued that ‘the requirements of the [prosecution’s] duty of fairness are neither rigid nor static’, but rather are contingent on the unique circumstances and facts of each case.^[30] Thus, the question is not whether there exists a universal, pre-trial obligation for the prosecution to tender certain evidence, but whether the decision not to do so in a particular case was a breach of the duty of fairness, and thus productive of a miscarriage of justice.^[31]

Justice Edelman also argued that the question simply cannot be answered from a perspective before the trial takes place.^[32] There is no way of knowing how the circumstances of a trial will unfold or how the particular piece of evidence in question will affect the trial.^[33] Therefore, even if the prosecutor believes the evidence will be immaterial to the issues that are likely to unfold, it may still be unfair to exclude it.^[34] Accordingly, Edelman J contended that the question should not be whether the Crown is obliged to tender the recorded interview at a point prior to the retrial, but rather at a point after the retrial has taken place, whether, in the precise circumstances of the trial as it occurred, the decision not to tender the recorded interview resulted in unfairness.^[35]

Nonetheless, Edelman J attempted to answer the second question by considering the likely impacts that may have arisen if the prosecution did not tender the record of interview, which would have required Mr Nguyen to expose himself to cross‑examination in order to put his account to the jury.^[36] Justice Edelman found that, if that decision was maintained throughout the retrial, it was ‘extremely likely’ to result in unfairness to the accused, due to his ‘cultural and linguistic disadvantages that are plainly evident’.^[37] For that reason, Edelman J decided that the prosecution’s admittedly tactical decision not to tender the recorded interview was not consistent with their duty to act fairly to the accused.^[38]

Thus, Edelman J ultimately agreed with the majority that the appeal should be allowed.^[39]

IV CONCLUSION

This case note has explained the key reasoning of each of the judgments given in Nguyen. The judgments have the potential to be significant to future discussions as to what is meant by the prosecution’s duty to present their case fully and fairly before the jury. The author agrees with the decisions in the concurring judgments of Nettle and Edelman JJ that it is problematic to speak of a free-standing, pre‑trial obligation to tender all available, cogent and admissible evidence. Rather, the prosecution, all the while being bound by the prima facie duty of fairness, should be allowed a discretion to tender such evidence as they deem necessary, the exercise of which would be subject to review by appellate courts.

The contention between the majority and concurring judgments in this High Court decision reveals that, despite an accused’s right to a fair trial being deeply ingrained in the Australian justice system, exactly what constitutes a ‘fair trial’ in criminal proceedings is perhaps not as clearly defined as one may assume. The majority judgment is useful in answering the questions posed on this appeal. However, it is the two concurring judgments of Nettle and Edelman JJ which open up the potential for future conversations regarding the prosecution’s duty of fairness and the bounds such a duty imposes on their discretion throughout the trial process.

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^[*] Bachelor of Laws Student, Notre Dame.

^[1] (2020) 269 CLR 299 (‘Nguyen’).

^[2] Ibid 307 [9].

^[3] Ibid 307–8 [11].

^[4] Ibid.

^[5] R v Nguyen (2019) 345 FLR 40, 46 [24] (Kelly and Barr JJ).

^[6] Ibid 45 [16], citing Singh v The Queen (2019) 344 FLR 137.

^[7] Evidence (National Uniform Legislation) Act 2011 (NT) s 81(2).

^[8] Nguyen (n 1) 310–11 [22].

^[9] R v Soma [2003] HCA 13; (2003) 212 CLR 299, 308 [26]–[27].

^[10] Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397 (‘Mahmood’).

^[11] Ibid 409 [41].

^[12] Nguyen (n 1) 316 [40], discussing R v Keevers (Court of Criminal Appeal of the Supreme Court of New South Wales, 26 July 1994) 7.

^[13] Nguyen (n 1) 314–15 [36] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ) (emphasis added).

^[14] Ibid 317 [44].

^[15] Ibid 307–8 [11].

^[16] Ibid 317 [44].

^[17] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 (‘Whitehorn’).

^[18] Ibid 669.

^[19] Ibid 674–5.

^[20] Nguyen (n 1) 315 [37], citing Whitehorn (n 17) 674.

^[21] Ibid 318 [47].

^[22] Ibid 320 [51].

^[23] Mahmood (n 10) 409 [41].

^[24] Nguyen (n 1) 319 [49] (Nettle J), quoting at 315–14 [36] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).

^[25] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510.

^[26] Ibid 517 (Barwick CJ), quoting Re Ratten [1974] VicRp 26; [1974] VR 201, 214 (Smith J).

^[27] Nguyen (n 1) 319–20 [50].

^[28] Ibid.

^[29] Ibid 320 [51].

^[30] Ibid 328 [71].

^[31] Ibid 329 [72].

^[32] Ibid 321 [54].

^[33] Ibid.

^[34] Ibid 332 [80].

^[35] Ibid 326 [67].

^[36] Ibid 331 [77].

^[37] Ibid.

^[38] Ibid.

^[39] Ibid 332 [81].