McNamara v The King

On appeal from the Supreme Court of New South Wales

G O'L Reynolds SC with G D Wendler and D A Ward for the appellant (instructed by Kings Law Group)

S C Dowling SC with E Balodis and A L Bonnor for the respondent (instructed by Director of Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Evidence - Criminal trial - Joint trial - Discretionary exclusion rule - Where appellant and co‑accused convicted of murder and supplying large commercial quantity of methylamphetamine - Where appellant sought to lead evidence at trial that co‑accused admitted participation in several homicides and other criminal violence to establish defence of duress - Where evidence excluded because unfairly prejudicial to co‑accused - Where s 135(a) of Evidence Act 1995 (NSW) permits court to refuse to admit evidence if probative value substantially outweighed by danger of unfair prejudice to "a party" - Whether "a party" includes co‑accused in joint criminal trial.

Words and phrases - "a party", "discretionary exclusion", "evidence", "interests of justice", "joint criminal trial", "joint indictment", "jointly charged", "proceeding", "reasons of principle and policy", "right to adduce admissible evidence", "unfairly prejudicial".

Criminal Procedure Act 1986 (NSW), ss 21(2)(b), 29, 29A.

1. GAGELER CJ, GLEESON AND JAGOT JJ. Section 135(a) of the Evidence Act 1995 (NSW) ("the Evidence Act") empowers a court to refuse to admit evidence, that is relevant and otherwise admissible in "a proceeding", if the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to "a party". The question in this appeal is whether "a party" includes a co-accused in a joint criminal trial. The answer is that it does. The Court of Criminal Appeal of the Supreme Court of New South Wales was correct so to hold, and the appeal must be dismissed.
2. To explain that answer in a manner responsive to the argument of the appellant, it is necessary to say something of the nature of a joint criminal trial, to examine the antecedent common law pertaining to the exclusion of evidence sought to be adduced by a co-accused, and to explain more fully how the scheme of the Evidence Act applies to a joint criminal trial.

1. The appellant, Glen McNamara, and his co-accused, Roger Rogerson, were tried by a jury before Bellew J in the Supreme Court of New South Wales on a single indictment presented by the Director of Public Prosecutions on behalf of the Crown in right of the State of New South Wales. The indictment charged them jointly with one count of murder and one count of supplying a large commercial quantity of methylamphetamine. The Crown case was that McNamara and Rogerson engaged in a joint criminal enterprise described as a "drug rip-off". Their plan was for McNamara to lure the deceased, Jamie Gao, a drug supplier, to a storage unit with the methylamphetamine where Rogerson was to pose as a purchaser. Their plan was then to dispossess Gao of the methylamphetamine and to cover their tracks by killing Gao and disposing of his body.
2. McNamara's case was that he was not party to a joint criminal enterprise with Rogerson either to dispossess Gao of the drugs or to kill Gao. His case was that an altercation between Gao and Rogerson occurred at the storage unit. The altercation culminated in Rogerson shooting Gao twice with a gun. Until the shooting, McNamara had been unaware that Rogerson had brought a gun to the storage unit. Following the shooting, he assisted Rogerson handling the drugs and disposing of Gao's body under the duress of Rogerson.
3. Rogerson's case was likewise that he was not party to such a joint criminal enterprise with McNamara, although his story of what occurred was different. His case was that he had gone to the storage unit to assist McNamara as his "second set of eyes". When he entered the storage unit, Gao was already lying dead on the floor.
4. The Crown closed its case on the 49th day of the trial. McNamara and Rogerson then consecutively went into evidence. After giving his evidence in chief, each was cross-examined by counsel for the Crown and by counsel for the other accused.
5. McNamara testified in his evidence in chief that, immediately after the fatal second shot, he asked Rogerson "why? why? why?". He testified that Rogerson in response approached him with the gun pointed directly at his head. McNamara sought to testify that Rogerson said:

"I did Drury, I did Drury. I'll do you too. Get up and fucking help me you weak cunt or I'll leave you on the floor lying next to him ... He pulled the fucking knife first, get up and help me or you'll be as dead as him, then I'll kill your girls."

1. McNamara additionally sought to testify to having had a conversation with Rogerson some months earlier. The earlier conversation was said to have occurred on a social occasion and in the context of McNamara having agreed to write a book about Rogerson. During the conversation, according to McNamara, Rogerson told McNamara that Rogerson had shot Michael Drury, had murdered Christopher Flannery and disposed of his body, had murdered Warren Lanfranchi, had arranged the murder of Alan Williams, and had been involved with the murders of Sallyanne Huckstepp and Luton Chu.
2. Having been appropriately forewarned of the terms of that proposed testimony, counsel for Rogerson objected to the admission of the whole of the earlier conversation and to the admission of the words "I did Drury, I did Drury". The basis of the objection was that the probative value of that proposed testimony to McNamara was substantially outweighed by the danger of its prejudicial effect on Rogerson.
3. In a reasoned ruling, the trial judge upheld the objection[1]. No point having been taken before the trial judge that he lacked power to exclude the proposed testimony of McNamara under s 135(a) of the Evidence Act, his Honour explained that he was persuaded that the probative value of the testimony to McNamara was outweighed by the real danger that it would be unfairly prejudicial to Rogerson and therefore that the power under s 135(a) of the Evidence Act should be exercised to exclude the testimony. As to the probative value of the testimony to McNamara, his Honour found that it added little to McNamara's case of duress, the "real basis" of the duress McNamara asserted stemming from a combination of seeing Gao shot in cold blood and the threat made by Rogerson immediately afterwards[2]. As to the danger of unfair prejudice to Rogerson, his Honour was satisfied that there was a real danger that admission of the testimony would leave the jury with a distinct impression that Rogerson was complicit in the murder of a number of other people[3]. That gave rise to a danger that the jury would be improperly influenced by that impression in reaching their verdict as to whether Rogerson had murdered Gao. His Honour considered that danger to be incapable of being alleviated by a direction in any terms[4].
4. McNamara's evidence in chief as adduced at the trial accordingly omitted the words "I did Drury, I did Drury" from his account of what Rogerson said to him at the storage unit and omitted all reference to the earlier conversation between McNamara and Rogerson.

1. Though McNamara's argument was directed ultimately to the construction of s 135(a) of the Evidence Act, McNamara pitched the argument at a level of high common law principle.
2. McNamara argued that the fundamental conception of a joint criminal trial at common law is that of the concurrent holding of separate trials of separate cases each exclusively between the Crown and a co-accused. In each of those several trials, according to McNamara, the co-accused has an unfettered right to make full answer to the Crown case against him or her by adducing admissible evidence probative of his or her innocence. Evidence adduced by one co-accused in the trial of that accused in answer to the Crown case against that co-accused does not become evidence in the Crown case against another co-accused in the trial of that other accused unless the Crown elects to re-open and to adopt the evidence of the co-accused in its separate case against the other co-accused. Unless the Crown takes that course of electing to adopt evidence sought to be adduced by one co-accused in its case against another co-accused, so McNamara's argument went, no occasion can arise for that evidence to be the subject of objection by the other co-accused.
3. To the extent there is a risk that relevant and otherwise admissible evidence adduced by one co-accused in answer to the Crown case against that co-accused might be improperly considered by the jury in the Crown case against another co-accused, McNamara argued that risk must be managed by the trial judge in the separate trial between the Crown and that other co-accused. The management tools available to the trial judge in that distinct trial include giving appropriate directions cautioning against use of the evidence by the jury in their consideration of the Crown case against that other co-accused. The management tools available to the trial judge also include, as a last resort, the continuing availability of the power to order a separate trial of the Crown case against that other co-accused. Those management tools do not include any power to exclude the evidence from the case of the co-accused who seeks to adduce that evidence in his or her own defence.
4. By way of principal illustration of the operation of the common law principle for which he contended, McNamara referred to the decision of the Privy Council in Lowery v The Queen[7]. There, in a joint trial of two co-accused charged with the callous murder of a young girl, evidence of the opinion of a psychologist as to the respective intelligences and personalities of the two was held admissible in the defence of one co-accused as a basis upon which to attempt to persuade the jury that the other co-accused was the more likely to have killed the girl. The Privy Council specifically endorsed[8] a statement in the decision of the Full Court of the Supreme Court of Victoria in R v Lowery [No 3][9] under appeal to the effect that there appeared no reason of policy or fairness which justified or required the exclusion of evidence tendered by an accused in disproof of his or her own guilt.

1. No account of the features of a criminal trial at common law could be proffered without circumspection. Historical analysis has demonstrated that the nature of a criminal trial changed markedly during the period between the end of the seventeenth century and the end of the eighteenth century from a proceeding which had been essentially inquisitorial to one which became essentially adversarial[11].
2. Many aspects of criminal procedure now considered fundamental were introduced only in the nineteenth and early twentieth centuries, and then only in consequence of statute[12]. The competence of an accused to give sworn evidence in his or her own defence is a pertinent example. That competence simply did not exist at common law[13]. It was introduced by statute in New South Wales only in 1891[14] and in England only in 1898[15]. The scenario with which the present case is concerned - of one co-accused seeking to testify adversely to another co-accused - could not have arisen in a common law trial before then given that neither co-accused could have testified at all.
3. Many common law rules of criminal procedure now considered fundamental were fashioned from conventional practice into rules of law quite late in the development of the common law. The power and duty of a court to exclude relevant and otherwise admissible prosecution evidence the probative value of which was outweighed by its forensic prejudice to an accused was acknowledged to have developed into a rule of law only in 1914[16]. The "golden thread" said to have been seen "throughout the web of English criminal law"[17] - "that the prosecution must prove the charge it makes beyond reasonable doubt, and, consequently, that if, on the material before the jury, there is a reasonable doubt, the [accused] should have the benefit of it"[18] - was "discovered"[19] only in 1935[20]. It will be seen that such support as is to be found in appellate decisions in common law jurisdictions for the existence of the unfettered common law right of a co-accused to give testimony adverse to another co-accused, for which McNamara argued, is of very much more recent origin.
4. There is nevertheless one feature of criminal procedure for trial by jury at common law the requirement for which has been constant through the centuries and remains foundational to the conduct of a trial by jury: the indictment. The indictment is the written accusation (sometimes styled an "information" or a "presentment") which charges one or more accused with one or more offences (each referred to as a "count") and which in so doing constitutes a plea of the Crown[21]. Presentation of the indictment to a court initiated the arraignment of the accused. If and to the extent that an accused pleaded not guilty to the charge or charges set out in the indictment, so as to be taken to have put himself or herself "upon the Country" for trial, the indictment then founded the jurisdiction of the court to empanel a jury to try the issues joined between the Crown and that accused in relation to the disputed charge or charges[22]. Those basic incidents of a trial on indictment at common law appear to have become conventional by the second half of the eighteenth century[23] and to have been settled by the second half of the nineteenth century[24]. Following the introduction of trial by jury in New South Wales as the standard method of trial of "all crimes misdemeanors and offences cognizable in the Supreme Court ... and prosecuted by information in the name of Her Majesty's Attorney General or other officer duly appointed for such purpose by the Governor" by statute in 1839[25], those incidents were incorporated into the scheme of the Criminal Law Amendment Act 1883 (NSW)[26] and the Crimes Act 1900 (NSW)[27] and are preserved within the scheme of the Criminal Procedure Act[28].

1. As has been foreshadowed, the construction of s 135(a) is appropriately addressed in the context of a more general examination of how the scheme of the Evidence Act applies to a joint criminal trial. A component of that more general examination involves the operation of s 9(1) of the Evidence Act upon which McNamara relied as the textual basis for his argument that the unfettered common law right of a co-accused to adduce admissible evidence probative of his or her innocence, which he argues to be part of the common law of Australia, requires s 135(a) to be given a confined construction.
2. Section 9 of the Evidence Act provides in full:

"(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.

(2) Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following -

(a) admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court,

(b) the operation of a legal or evidential presumption that is not inconsistent with this Act,

(c) a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding."

1. Section 9 of the Evidence Act has an operation broader than s 9 of the Commonwealth Evidence Act, which provides "[f]or the avoidance of doubt" that the Commonwealth Evidence Act "does not affect" specified categories of Commonwealth, State and Territory laws. The "common law" to which s 9(1) of the Evidence Act refers "must be understood either as a body of law created and defined by the courts or as a body of law which, having been declared by the courts at a particular time, may in truth be - and be subsequently declared to be - different"[82]. The same must be true, perhaps even more so, of the reference to "equity"[83]. The principles of common law and equity to which s 9(1) refers are therefore not confined to antecedent principles. Nor, as s 9(2) illustrates, are they confined to "fundamental" principles[84].
2. But nor does the declaration in s 9(1), that the Evidence Act does not affect the operation of a principle of common law or equity in relation to evidence "except so far as [it] provides otherwise expressly or by necessary intendment", equate to a "stringent" requirement for the manifestation of "a clear expression of an unmistakable and unambiguous intention" to displace such a principle in order for the Act to be construed as doing so[85]. The provision does not enact a principle of strict or narrow construction. Its purpose and effect are merely to confirm that the Evidence Act does not operate to cover the field of the law of evidence. In the language of the Attorney-General of New South Wales in his second reading speech for the Evidence Act, "whilst the [Act] codifies many aspects of the law of evidence, it is not intended to operate as an exhaustive code". The Attorney-General specifically referred to the principles of common law and equity which s 9(1) says are not affected by the Act and explained that "because the [Act] is comprehensive, the scope for operation of these principles and rules will be extremely limited"[86].
3. In Papakosmas v The Queen[87] Gleeson CJ and Hayne J remarked that the language and legislative history of the Evidence Act make clear that the Act "was intended to make, and that it has made, substantial changes to the law of evidence in New South Wales", that the language of the Act is determinative of the scope of its application, and that the construction of that language is not to be approached on the assumption that it conforms to the pre-existing common law. The subsequent observation by Gleeson CJ, Gummow, Heydon and Crennan JJ in Cornwell v The Queen[88], to the effect that where the ALRC thought that its proposals would change the law significantly it was normally careful to make its intention to do so clear, was an observation which bore on the discernment of the purpose of the statutory language in issue in that case. The observation was not directed to the operation of s 9(1).

"It is notable that both ss 55 and 56 address the question whether evidence is admissible in a proceeding. Where a plaintiff seeks to make out separate cases against several defendants in a single proceeding, the question to which the Evidence Act provides an answer is whether evidence is admissible in the proceeding, not whether evidence is admissible to prove the plaintiff's case against a particular defendant. The answer it gives is that if the evidence is relevant, it is admissible. Once it is admitted, it is evidence in the proceeding, and therefore available to be used for any purpose, unless one of the exclusionary rules of the Act or any surviving general law exclusionary rule applies, or the Court makes use of its statutory discretions to exclude admissible evidence or limit its use."

1. The combined operation of ss 55(1) and 56(1) can be no different in their application to a multi-party criminal proceeding. For the purposes of s 55(1), the facts in issue in a criminal proceeding are the ultimate facts which establish the elements of the offence or offences charged together with such other facts the existence of which may be probative of the existence of those ultimate facts[100]. Applied to a criminal proceeding constituted by a joint trial on a joint indictment, ss 55(1) and 56(1) produce the result that any evidence adduced on the basis that it is probative of the existence of a fact in issue between the Crown and a co-accused is available to be used by the jury in assessing the probability of the existence of any other fact in issue between the Crown and that co-accused or between the Crown and any other co-accused, unless and to the extent that the admission of the evidence is excluded, or the use of the evidence is limited, by or under some other section. That is so for all evidence adduced in the joint trial, whether by the Crown or any co-accused and whether in examination in chief or in cross-examination.
2. Within the framework so set by s 55(1) and s 56(1), ss 135, 136 and 137 use similar terminology to provide for a complementary set of exclusions and limitations. In particular, s 135(a)'s provision that "[t]he court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might ... be unfairly prejudicial to a party" is mirrored by s 136(a)'s provision that "[t]he court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might ... be unfairly prejudicial to a party". Each of those discretionary provisions is applicable in a criminal proceeding as it is in a civil proceeding. Section 137 then adds that "[i]n a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant".
3. The express confining of s 137 to "evidence adduced by the prosecutor" serves implicitly to confirm that the reference to "evidence" in each of s 135(a) and s 136(a) extends to evidence adduced by any party including evidence adduced by any co-accused. The danger of unfair prejudice to "a party" which is able to be considered by a court in determining whether to exclude or limit the use of evidence under s 135(a) or s 136(a), no less than the danger of unfair prejudice to "the defendant" which must be considered by a court in determining whether to exclude evidence under s 137, is unfair prejudice to any co-accused.

1. The appeal must be dismissed.
2. GORDON AND STEWARD JJ. Under s 135(a) of the Evidence Act 1995 (NSW), the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. Glen McNamara and Roger Rogerson were charged with murder on a single indictment and tried jointly before a jury. At the joint trial, McNamara sought to admit into evidence conversations he had had with Rogerson, his co-accused, in support of his defence of duress. The trial judge refused to admit part of one conversation and the entirety of another under s 135(a) of the Act on the basis that the probative value of that evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to Rogerson.
3. The sole issue on appeal to this Court is whether the trial judge and the Court of Criminal Appeal of the Supreme Court of New South Wales were correct to hold that, in the expression "unfairly prejudicial to a party" in s 135(a) of the Act, the word "party" extends to and includes a co-accused in a joint trial. The answer is that they were right to so hold. As these reasons will show, the text of the Act properly construed requires that conclusion. The structure and architecture of the Act and aspects of criminal practice and procedure against which the Act was enacted - single indictment for co-accused, joint trial of co‑accused on that indictment, power to sever the indictment and order separate trials before or during a joint trial - combine to require the result that the discretion in s 135(a) applies to evidence given, or proposed to be given, by one co-accused in a joint trial. The appeal should be dismissed.
4. We adopt the facts giving rise to the appeal and the course of the proceedings which are set out in the reasons of Gageler CJ, Gleeson and Jagot JJ.

1. The starting point is the Act[102]. The Act relevantly applies to "all proceedings in a NSW court"[103]; it applies to criminal and civil proceedings. The Act was intended to make and made substantial changes to the law of evidence in New South Wales[104]. As a result, the language of the Act is determinative of the scope of its application, and the meaning and effect of that language is not to be determined "in the light of, and in a manner that conforms to, the pre-existing common law"[105]. It will be necessary to later consider s 9(1) of the Act which preserves "the operation of a principle or rule of common law or equity in relation to evidence" except so far as the Act "provides otherwise expressly or by necessary intendment". As it happens, and as explained below, s 135 is consistent with the common law.
2. Under the Act, if evidence is relevant, meaning that, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding[106], it is admissible, subject to the exclusions in the Act. As s 56 provides, "[e]xcept as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding" and "[e]vidence that is not relevant in the proceeding is not admissible". In sum, once evidence is through the gateway of ss 55 and 56 of the Act, it is, by definition, "probative"[107] and is relevant for all purposes and in respect of all parties unless excluded by an exclusionary rule or a discretionary or mandatory exclusion[108].
3. One of those discretionary exclusions is s 135(a) of the Act. It contains a general discretion to refuse to admit evidence. It provides that:

"The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, ..." (emphasis added)

1. "[P]arty" is not defined in the Act. The phrase "unfairly prejudicial to a party" in s 135(a) does not by its ordinary meaning indicate any confinement or limitation such that it cannot apply to a co-accused in a joint trial. As the Court of Criminal Appeal said, "party" is "apt to describe those persons who are participating in a legal proceeding and whose rights and liabilities may be affected by the evidence adduced in that proceeding" and thus, in a joint trial on a single indictment, that includes a co-accused. As will be seen, none of the other provisions in the Act requires, let alone compels, a different conclusion; other provisions of the Act support "party" in s 135(a) including a co-accused in a joint trial.
2. For example, in Pt 2.1 of the Act, headed "Witnesses", s 20(2) provides that "[a] judge or any party (other than a prosecutor) may comment on a failure of the defendant to give evidence" and then proceeds to address a joint trial of co-accused by stating that "unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned" (emphasis added).
3. Similarly, s 27 of the Act provides that "[a] party may question any witness, except as provided by this Act" (emphasis added). The term "witness" is defined to include a party giving evidence, and a reference to a "party" in that definition includes a defendant in a criminal proceeding[109]. As questioning of a defendant in a criminal proceeding will likely include cross-examination, two other definitions should be noted. "[C]ross-examiner" is defined to mean "a party who is cross‑examining a witness"[110] and "[a] reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence"[111]. In the trial the subject of this appeal, s 27 conferred upon each of McNamara and Rogerson the right to cross‑examine the other when the other gave evidence - a right they each exercised. Put in different terms, to enable cross-examination of a co‑accused under s 27, "party" must refer to a co-accused. Next, s 37 of the Act regulates the use of leading questions in examination in chief and re-examination. Leading questions may be put relevantly if there is no objection and "each other party to the proceeding" is legally represented[112]. In the context of a criminal proceeding where there is more than one accused, "each other party" in s 37(1)(c) must refer to a co-accused.

1. The Act applies to criminal proceedings. What then of the wider legal context - aspects of criminal practice and procedure - against which the Act was enacted? As noted earlier, s 9(1) of the Act preserves the "operation of a principle or rule of common law or equity in relation to evidence" except so far as the Act "provides otherwise expressly or by necessary intendment". Section 9 has been interpreted to preserve common law rules of evidence that could be classified as part of the substantive law, such as the parol evidence rule, the doctrines of res judicata and issue estoppel, and the law relating to presumptions[118]. The Act has also been held to preserve underlying principles of the accusatorial and adversarial system of a criminal trial[119]. As five members of this Court recently observed in Nguyen v The Queen, in relation to the Uniform Evidence Act and the Criminal Code (NT), "[t]he conduct of a criminal trial is subject to practices and procedures which ... may be informed by principles or rules which are regarded as fundamental to the conduct of a criminal trial", and which are not to be found in those kinds of statutes[120].
2. At least three aspects of criminal practice and procedure combine to require the result that the discretion in s 135(a) applies to evidence given by a co-accused in a joint trial.

1. In enacting the Act, including s 135(a), the legislature must be taken to have been aware that in a trial upon indictment, the jury can only be empanelled and sworn to try the issues on the particular indictment, whether or not there are multiple co‑accused[121]. There can only be a single indictment for co-accused[122].
2. As Gavan Duffy and Starke JJ said in Munday v Gill, "in a trial upon indictment the jury is, and can only be, impanelled and sworn to try the issues of the particular indictment - to find whether the accused be guilty or not guilty upon that indictment and no other. Therefore the simultaneous trial of several indictments is impossible"[123].
3. It has been said that at common law "each count in an indictment is really a separate indictment"[124] and that "[i]ndictments are to be read jointly and severally"[125]. However, this does not detract from the fact that there is only a single indictment for co-accused in a joint trial[126]. A single indictment of multiple accused will be presented where the matters charged arise out of the same facts and matters. When this is the charge, it is described as a joint charge[127]. As Lord Diplock said in Director of Public Prosecutions v Merriman, "[a] 'joint offence' of two defendants means no more than that there is this connection between the separate offences of each, so that as against each defendant not only his own physical acts but also those of the other defendant may be relied upon by the prosecution as an actus reus of the offence with which he is charged"[128]. In a trial of a co-accused on a single indictment, there is not "more than one trial actually taking place"[129]. The foregoing proposition is not denied by the fact that all crime is individual and that each accused needs to be proved guilty independently.
4. Counsel for McNamara's reliance on R v Stringer[130] and Latham v The Queen[131] for the proposition that there are two separate trials and therefore two separate proceedings is misplaced. It was submitted that Stringer and Latham established that each count in an indictment is effectively a separate indictment. Neither is authority for that proposition. The statement in Stringer that "each count in an indictment is really a separate indictment" was made in the context of demonstrating that the charging of two offences on a single indictment did not give rise to issues of double jeopardy[132]. The statement in Latham that "[e]ach count is in fact and theory a separate indictment"[133] was used for a different purpose - to justify not ordering a new trial after a jury failed to provide a verdict on one count of a single indictment of co-accused[134]. Whether there are two separate "cases" before a jury of two or more accused on a joint indictment is not to the point. To the extent that co-accused have separate cases, the analysis supports the opposite proposition - that an accused is a party to a co-accused's case.

1. Similarly, in enacting the Act, including s 135(a), the legislature must be taken to have been aware of the Criminal Procedure Act 1986 (NSW) which empowers a court, under s 29(2), to order a joint trial but also, under s 21(2)(b), to "order a separate trial" for an accused. The starting point is that "[w]here the crime is one in which the Crown alleges a common purpose in two or more persons to commit a crime prima facie they should be tried together"[135]. The fact that one accused is intending to say that he or she acted under duress by the other accused (whether both are charged as principal offenders or as principal offender and accessory after the fact) is not of itself a valid reason for severing the trial of individual accused persons[136]. In fact, that one accused alleges that he or she was coerced by a co-accused is a reason for adhering to a joint trial[137].
2. The rationale for joint trials is well established. The interests of justice dictate strong reasons of principle and public policy for joint offences to be tried jointly, especially where co-accused run "cut‑throat" defences[138]. Four matters of "public interest" have been articulated in favour of joint trials[139]: (1) it is important to bear in mind the use of court time and public expense incurred if more than one trial is conducted; (2) it is against the interests of justice that there should be inconsistent verdicts and where the accounts of the accused differ or conflict, the differences should be resolved by the same jury at the same trial; (3) it is the policy of the law to reach finality as expeditiously as possible; and (4) witnesses should not be required to give evidence of the same events at a succession of trials.
3. On the other hand, considerations relevant to the question of whether an application for a separate trial should be granted were explained by Hunt J in R v Middis[140] in the following terms:

"Briefly, the relevant principles are that: (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.

I do not believe that the Court of Criminal Appeal in Regina v Oliver [(1984) 57 ALR 543] intended an applicant for a separate trial to demonstrate that positive injustice would more likely than not be caused by a joint trial (as it was suggested in argument); nor do I accept that a mere possibility of prejudice is sufficient (as it was also suggested in argument). In my view, what the Court of Criminal Appeal was saying was that, as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would - if it arises [-] result in positive injustice to him in a joint trial."

That passage has been approved in New South Wales on a number of occasions[141].

1. Consistent with those principles, prejudice to a co-accused will generally not be sufficient to justify the ordering of separate trials if jury directions would nullify the prejudice[142]. It is also for those reasons that an appellate court will not interfere with the trial judge's discretion to not have separate trials unless it would appear that "something occurred later, during the course of the trial, which brought about a miscarriage of justice"[143]. A defining principle of criminal law remains - "[a] presentment should always be severed where that is both desirable and practicable in order to ensure a fair trial"[144].
2. Section 21(2) of the Criminal Procedure Act separately, and collectively with the other aspects of criminal practice and procedure to which reference will be made, compels the conclusion that "party" in s 135(a) of the Act was intended to include a co‑accused in a joint trial.

1. Counsel for McNamara submitted that "party" in s 135(a) should be construed as not extending to a co‑accused because in a joint trial only the Crown or the accused could object to evidence being led in the accused's case. This submission had no basis in authority and counsel accepted that no provision of the Act supported it. Rather, the justification for the assertion that prejudice to a co-accused is not considered when applying s 135(a) of the Act was said to arise from two matters - that at common law an accused had an unfettered right to adduce evidence and the nature of the joint trial. The submission is rejected. The nature of the joint trial has been addressed. It compels the contrary conclusion.
2. The contention that at common law an accused had an unfettered right to adduce evidence should not be accepted. Such a "right" does not exist and cannot be picked up by s 9 of the Act - it is not a "principle or rule of common law". There was and is no such unfettered right in this country[145]. On any view, an accused cannot adduce irrelevant evidence[146]. Rather, trial judges retain a discretion to refuse to admit evidence[147]. However, the circumstances in which the discretion will be exercised to refuse to admit evidence in support of a defence are "few"[148], "exceptional"[149] and "will necessarily be rare"[150].
3. A number of authorities - R v Lowery [No 3] [151], R v Darrington[152] and R v Gibb[153] - support the existence of the judicial discretion to exclude evidence brought by one co-accused against another due to its prejudicial effect. In Lowery [No 3], it was said that there is a "need for an accused person to be left unfettered in defending himself by any legitimate means against the charge made against him"[154]. It was held, however, that the trial judge did not act "unjustly or unreasonably by exercising his discretion to admit evidence which was relevant to disprove the guilt of King" because it could not be said that the "probative value to the defence of King was so weak compared with the prejudicial effect on the defence of Lowery as to require the Judge to exclude it as a matter of discretion"[155]. The Court found it unnecessary to rule on the submission as to whether the discretion existed because the discretion in that case was "rightly exercised"[156].
4. In Darrington, Jenkinson J said (Young CJ agreeing) that "a discretion is reposed in the trial Judge to exclude evidence otherwise admissible which is tendered by one of several accused in disproof of his guilt of a crime charged against them jointly"[157]. And in Gibb, it was said that a trial judge "retains a discretion to exclude [evidence relevant to the accused's defence] in a proper case ... [b]ut such an exercise of discretion will necessarily be rare"[158]. There may be exceptionally rare cases where a defendant will not be able to admit all evidence that they intend to admit[159].

"It is commonplace that one accused will have made an out of court statement implicating a co-accused and that the prosecution will seek to adduce evidence of the statement in the case against its maker. Generally, a direction that the jury must not use the statement as evidence in the case against the co-accused will be sufficient to ensure a fair trial. There may, however, be instances where an out of court statement is so prejudicial to the co-accused that it cannot be assumed that the prejudice will be removed by a direction to the jury".

Where a jury direction is insufficient to guard against the risk of impermissible prejudice to the accused, an application for separate trials should generally be granted[170].

1. The words "to a party" in s 135(a) do not alter the outcome - the focus is on reducing prejudice. Properly construed, s 135(a) cannot be understood as excluding consideration of prejudice to a co-accused in determining whether a court should refuse to admit otherwise relevant and admissible evidence.
2. This appeal should be dismissed.

2. R v Rogerson [No 45] [2016] NSWSC 452 at [35]. ↑

3. R v Rogerson [No 45] [2016] NSWSC 452 at [40]. ↑

4. R v Rogerson [No 45] [2016] NSWSC 452 at [41]. ↑

6. Rogerson v The Queen (2021) 290 A Crim R 239 at 243-263 [478]-[562]. ↑

See Langbein, The Origins of Adversary Criminal Trial (2003). ↑

See Smith, "The Trial: Adversarial Characteristics and Responsibilities; Pre-trial and Trial Procedures", in Baker (ed), The Oxford History of the Laws of England (2010), vol 13, 58 at 60-121. ↑

Cornwell v The Queen (2007) 231 CLR 260 at 272. ↑

Section 6 of the Criminal Law and Evidence Amendment Act of 1891 (NSW). See R v Stalder [1981] 2 NSWLR 9 at 24. ↑

Section 1 of the Criminal Evidence Act 1898 (UK). ↑

R v Christie [1914] AC 545 at 559. See Pattenden, The Judge, Discretion and the Criminal Trial (1982) at 66-67. ↑

Thomas v The Queen (1960) 102 CLR 584 at 602. ↑

Mancini v Director of Public Prosecutions [1942] AC 1 at 11. ↑

Parker v The Queen (1963) 111 CLR 610 at 661. ↑

Woolmington v Director of Public Prosecutions [1935] AC 462 at 481-482. ↑

Munday v Gill (1930) 44 CLR 38 at 86; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 523-524; R v Hull (1989) 16 NSWLR 385 at 389-393. ↑

23. See Blackstone, Commentaries on the Laws of England (1769), bk 4 at 299, 317-319, 333-335, 342-345. Compare Baker, "Criminal Courts and Procedure 1550-1800", in Collected Papers on English Legal History (2013), vol 2, 1015 at 1046; Beattie, Crime and the Courts in England 1660-1800 (1986) at 395-396. ↑

24. See Stephen, A History of the Criminal Law of England (1883), vol 1 at 297-307. ↑

25. Jury Trials Act 1839 (NSW). See Alqudsi v The Queen (2016) 258 CLR 203 at 254-255 [129]. ↑

28. See ss 130 and 154 of the Criminal Procedure Act. ↑

34. eg FX v The Queen (2020) 290 A Crim R 31 at 38 [164]-[166]; Caleo v The Queen (2021) 290 A Crim R 352 at 375-376 [132]-[133]. Compare R v Newson [2020] NSWSC 462 at [11]. ↑

35. Section 78A of the Justices Act 1902 (NSW) as substituted by Item (2) of Sch 1 to the Justices (Amendment) Act 1987 (NSW). ↑

36. See R v Darwiche [2006] NSWSC 929 at [114]-[118]. ↑

38. Item 1.8 [3] of Sch 1 to the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 (NSW). ↑

39. Deputy Federal Commissioner of Taxes (SA) v Elders' Trustee and Executor Co Ltd (1936) 57 CLR 610 at 625; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 505-506. ↑

40. R v Fenwick (1953) 54 SR (NSW) 147 at 152; Director of Public Prosecutions v Merriman [1973] AC 584 at 591-594, 606-607; R v Darby (1982) 148 CLR 668 at 677; King v The Queen (1986) 161 CLR 423 at 433-434. ↑

41. eg Bannon v The Queen (1995) 185 CLR 1 at 13. See also Ross, "One Accused's Evidence of Another's Criminal Disposition" (2006) 11 Deakin Law Review 179 at 179. ↑

45. Unreported, Court of Criminal Appeal of New South Wales, 11 May 1990. ↑

46. Webb v The Queen (1994) 181 CLR 41 at 56, 80-81, 93-94. ↑

50. (1991) 56 SASR 302 at 309, quoting R v Glover (1987) 46 SASR 310 at 312. ↑

51. R v Collie (1991) 56 SASR 302 at 308, citing R v Gibbins and Proctor (1918) 13 Cr App R 134 at 137, R v Grondkowski [1946] KB 369 and R v Kerekes (1951) 70 WN (NSW) 102. See also Ali v The Queen (2005) 79 ALJR 662 at 670 [58]; 214 ALR 1 at 12. ↑

52. Webb v The Queen (1994) 181 CLR 41 at 89, citing R v Demirok [1976] VR 244 at 254. ↑

56. See also R v Jones and Waghorn (1991) 55 A Crim R 159 at 164, citing R v Ditroia and Tucci [1981] VR 247. ↑

57. Caleo v The Queen (2021) 290 A Crim R 352 at 377-378 [137]-[138]. ↑

58. Awad v The Queen (2022) 296 A Crim R 561 at 587 [115], quoting Jarvie v The Magistrates' Court of Victoria [1995] 1 VR 84 at 90. ↑

63. [1995] 1 WLR 877 at 886-889; [1995] 2 All ER 602 at 611-613. ↑

65. Section 1(f)(iii) of the Criminal Evidence Act 1898 (UK). ↑

66. [1995] 1 WLR 877 at 889; [1995] 2 All ER 602 at 613. ↑

71. R v Roughan and Jones (2007) 179 A Crim R 389 at 403 [68]-[70] (410 [102] contra), affirmed on other grounds in Jones v The Queen (2009) 83 ALJR 671; 254 ALR 626. ↑

72. R v Murch (2014) 119 SASR 427 at 435-436 [33]-[38]. ↑

73. Russell v Western Australia (2011) 214 A Crim R 326 at 348 [79]; Mansfield v Western Australia (2017) 52 WAR 233 at 257 [106]. Compare Kazemi v The Queen (2003) 28 WAR 176 at 177 [8], 184 [58], [60]. ↑

75. (1983) 12 A Crim R 315 at 320, 325-326. An abridged report is available at [1983] 3 NSWLR 240. ↑

78. [1983] 2 VR 155 at 163. See also R v Carranceja (1989) 42 A Crim R 402 at 407. ↑

See cl 114 of the Draft Evidence Bill in Australian Law Reform Commission, Evidence, Report No 26 (1985), vol 2 at 57. ↑

Australian Law Reform Commission, Evidence, Report No 26 (1985), vol 1 at 464 [811]. ↑

Western Australia v Commonwealth (1995) 183 CLR 373 at 485. See Meteyard v Love (2005) 65 NSWLR 36 at 67 [118]. ↑

Aid/Watch Inc. v Federal Commissioner of Taxation (2010) 241 CLR 539 at 549 [23]. ↑

Compare Coco v The Queen (1994) 179 CLR 427 at 437. ↑

Compare Coco v The Queen (1994) 179 CLR 427 at 437-438. ↑

New South Wales, Legislative Council, Parliamentary Debates (Hansard), 24 May 1995 at 114. ↑

(1999) 196 CLR 297 at 302 [10]. See also at 310 [39], 312 [46], 324 [88]. See also IMM v The Queen (2016) 257 CLR 300 at 311 [35]. ↑

90. Evidence Act (definition of "civil proceeding"). ↑

91. Evidence Act (definition of "criminal proceeding"). ↑

Rogerson v The Queen (2021) 290 A Crim R 239 at 254 [522]. ↑

Rogerson v The Queen (2021) 290 A Crim R 239 at 252-253 [516]. See ss 5(2) and 8(b) of the Interpretation Act 1987 (NSW). ↑

See, eg, ss 20, 66(3), 73(2), 85, 101, 104 of the Evidence Act. ↑

Compare Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 565 [51]-[52]. ↑

See RPS v The Queen (2000) 199 CLR 620; Azzopardi v The Queen (2001) 205 CLR 50. ↑

Clause 7 of Pt 2 of the Dictionary to the Evidence Act. ↑

(2003) 48 ACSR 282 at 287 [22]. See also Johnstone v New South Wales (2010) 202 A Crim R 422 at 448 [102]. ↑

Smith v The Queen (2001) 206 CLR 650 at 654 [7]. See also Hughes v The Queen (2017) 263 CLR 338 at 349 [16]. ↑

102. IMM v The Queen (2016) 257 CLR 300 at 311 [35], citing Papakosmas v The Queen (1999) 196 CLR 297 at 302 [10] and R v Ellis (2003) 58 NSWLR 700 at 716-717 [78]. ↑

104. Papakosmas (1999) 196 CLR 297 at 302 [10], 310 [38]-[40], 312 [46], 324 [88]; Ellis (2003) 58 NSWLR 700 at 715-717 [70], [74], [78]; IMM (2016) 257 CLR 300 at 311 [35]. See also Australian Law Reform Commission, Evidence, Report No 26 (1985), vol 1 at 350 [638], [640] ("ALRC Report"). ↑

105. Papakosmas (1999) 196 CLR 297 at 302 [10]; see also at 310 [38]-[40], 312 [46], 324 [88]. ↑

108. Australian Securities and Investments Commission v Vines (2003) 48 ACSR 282 at 287 [22]. ↑

110. Evidence Act, Dictionary, Pt 1, definition of "cross-examiner". ↑

115. Evidence Act, Dictionary, Pt 1, definition of "admission". ↑

117. Evidence Act, ss 4, 20, 55, 56; cf Interpretation Act 1987 (NSW), s 8(b). ↑

118. Haddara v The Queen (2014) 43 VR 53 at 71-72 [54]-[55]. See also Evidence Act, s 93(c); Harkins v Butcher (2002) 55 NSWLR 558 at 563 [15]; Evans v The Queen (2007) 235 CLR 521 at 587 [224]; International Finance Trust Co Ltd v New South Wales Crime Commission (2008) 251 ALR 479 at 484 [13]; Odgers, Uniform Evidence Law, 17th ed (2022) at 77 [9.150]. ↑

119. R v Soma (2003) 212 CLR 299 at 308 [27]; R v Ronen (2004) 62 NSWLR 707 at 722 [67]; Odgers, Uniform Evidence Law, 17th ed (2022) at 76 [9.90]. See Nguyen v The Queen (2020) 269 CLR 299 at 311 [26]. ↑

120. (2020) 269 CLR 299 at 311 [26] (footnote omitted). ↑

122. Munday (1930) 44 CLR 38 at 76, 87. See also R v Crane [1921] 2 AC 299 at 319‑320, 321-322, 330-331, 335-336; R v Dennis [1924] 1 KB 867 at 868-869. Section 130(2) of the Criminal Procedure Act 1986 (NSW) relevantly provides that "[t]he court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned". ↑

127. See, eg, Director of Public Prosecutions v Merriman [1973] AC 584 at 592 where Lord Morris stated "there is no magic in speaking of a joint charge". ↑

129. R v Swannson (2007) 69 NSWLR 406 at 436 [186]. ↑

(1864) 5 B & S 635 at 643 [122 ER 968 at 971]. ↑

(1864) 5 B & S 635 at 641-643 [122 ER 968 at 970-971]. ↑

R v Demirok [1976] VR 244 at 252, quoting R v Kerekes [1951] 70 WN (NSW) 102 at 105; R v Glover (1987) 46 SASR 310 at 312. ↑

Western Australia v Russell [2009] WASCA 154 at [72], citing R v Eriemo [1995] 2 Cr App R 206 at 211 and R v Grondkowski [1946] KB 369 at 372-374. See also Ali v The Queen (2005) 79 ALJR 662 at 670 [58]; 214 ALR 1 at 12. ↑

R v Gibb [1983] 2 VR 155 at 163. See also Webb v The Queen (1994) 181 CLR 41 at 56, 88-89; R v Roughan (2007) 179 A Crim R 389 at 398-399 [49]-[50]. ↑

Webb (1994) 181 CLR 41 at 56, 88-89; Roughan (2007) 179 A Crim R 389 at 398‑399 [49]-[50]. ↑

Demirok [1976] VR 244 at 254. See also Webb (1994) 181 CLR 41 at 56, 88-89, citing R v Collie (1991) 56 SASR 302 at 307‑311; Samia v United States (2023) 599 US 635 at 654-655. ↑

Unreported, Supreme Court of New South Wales, 27 March 1991 at 4-5. ↑

See Caleo v The Queen (2021) 290 A Crim R 352 at 377 [137], [138], citing R v Baartman (unreported, Court of Criminal Appeal of New South Wales, 6 October 1994), R v Chami (2002) 128 A Crim R 428 at 430 [12], Symss v The Queen [2003] NSWCCA 77 at [69], Pham v The Queen [2006] NSWCCA 3 at [10], Madubuko v The Queen (2011) 210 A Crim R 249 at 258-259 [28], Trotter v The Queen [2016] NSWCCA 57 at [26]-[27] and Hamalainen v The Queen [2019] NSWCCA 276 at [68]. ↑

Sutton v The Queen (1984) 152 CLR 528 at 542; R v Henry [2008] NSWCCA 248 at [12(3)]; Stagno v Western Australia [2013] WASC 186 at [13(h)]. See also R v Christou [1997] AC 117 at 129. ↑

Demirok [1976] VR 244 at 252, quoting Kerekes [1951] 70 WN (NSW) 102 at 105. ↑

R v TJB [1998] 4 VR 621 at 630; see also Dietrich v The Queen (1992) 177 CLR 292 at 299-300, 311, 326-329, 353, 362; X7 v Australian Crime Commission (2013) 248 CLR 92 at 116-117 [37]‑[38]. ↑

cf Tan Siew Gim v The Queen [1995] UKPC 25 at 4-5; R v Myers [1998] AC 124 at 136, 145; R v Hartley [2007] 3 NZLR 299 at 309 [60], [62]. ↑

147. R v Lowery [No 3] [1972] VR 939 at 948; R v Darrington [1980] VR 353 at 384‑385; Gibb [1983] 2 VR 155 at 163; R v Su [1997] 1 VR 1 at 65-66. See also R v Taylor [2003] NSWCCA 194 at [130]. See also ALRC Report at 464 [811]. ↑

159. Taylor [2003] NSWCCA 194 at [130]; Hayward v The Queen (2018) 97 NSWLR 852 at 872 [75], citing Alister v The Queen (1983) 154 CLR 404. ↑

163. Lowery [No 3] [1972] VR 939 at 948; Darrington [1980] VR 353 at 384-385; Gibb [1983] 2 VR 155 at 163; Su [1997] 1 VR 1 at 66. See also Taylor [2003] NSWCCA 194 at [130]. ↑

164. Sutton (1984) 152 CLR 528 at 558; Dietrich (1992) 177 CLR 292 at 299, citing Jago v District Court (NSW) (1989) 168 CLR 23 at 29, 56, 72, 75. See also Dietrich (1992) 177 CLR 292 at 362. ↑

166. Miller [1952] 2 All ER 667 at 670, citing R v Grondkowski [1946] KB 369. ↑

169. [2013] WASC 186 at [13(h)], citing Re Attorney-General's Reference No 1 of 1977 [1979] WAR 45 and Western Australia v Bowen (2006) 32 WAR 81 at 95-96 [54]; see also Zammit v Western Australia (2007) 34 WAR 302 at 322 [65]. ↑

170. Sutton (1984) 152 CLR 528 at 541-542; De Jesus v The Queen (1986) 61 ALJR 1 at 3, 7, 8; 68 ALR 1 at 4-5, 12, 13; KRM v The Queen (2001) 206 CLR 221 at 234‑235 [38]. See also R v Verma (1987) 30 A Crim R 441 at 444; Lobban v The Queen [1995] 1 WLR 877 at 889; [1995] 2 All ER 602 at 613; Winning v The Queen [2002] WASCA 44 at [42]. ↑