EDELMAN J.
Introduction
This appeal raises the following legal question: what are the legal consequences, for a trial governed by the Evidence (National Uniform Legislation) Act 2011 (NT) ("the Uniform Evidence Act"), of the refusal of a prosecutor to tender into evidence a "mixed" video record of interview between the police and an accused person - that is, a record containing both inculpatory and exculpatory statements. The facts and circumstances of this appeal are set out more fully in the joint judgment. I agree with their Honours that the appeal should be allowed generally for the reasons they express. The central focus of the following reasons is upon the difficulties that arise from the way in which this legal question arose before the Full Court of the Supreme Court of the Northern Territory and the expression of the questions referred to that Court.
The usual circumstance in which an allegation of breach of prosecutorial duty arises before an appellate court can be seen in Singh v The Queen, Matter D16 of 2019, with which this appeal was heard concurrently. In Singh, the appellant was convicted after trial before a judge and jury. The question before the Court of Criminal Appeal of the Northern Territory was whether the appeal should be allowed because the failure of the prosecutor to tender the video record of interview occasioned a miscarriage of justice. But the legal question in this appeal arose in a different way. The relevant trial, namely the retrial, of Mr Nguyen had not even begun when the issue arose. The trial was stayed pending the referral of two questions to the Full Court of the Supreme Court of the Northern Territory, which concerned (i) whether the video record of interview was "admissible in the Crown case", and (ii) whether the Crown was "obliged to tender the recorded interview". The Full Court answered the first question "Yes" and the second question "No". Although the answer to the first question was not challenged by a cross-appeal in this Court, it is necessary to understand the basis for that answer in order to answer the second question.
The assumption underlying the literal expression of the second question referred to the Full Court is that prior to a trial there can be an existing legal obligation on the prosecution to tender a video record of interview. That assumption is incorrect. A so-called "obligation" to tender a video record of interview, like a so-called "obligation" to call a witness, is not a free-standing obligation at all. It is an aspect of the prosecutor's duty of fairness. The content of the prosecutor's duty of fairness depends upon all the circumstances at trial. It can never be said with certainty prior to the conclusion of the prosecution case that a prosecutor's duty of fairness would necessarily require a witness to be called or a video record of interview to be tendered. An initial impression that fairness would require a witness to be called or a video record of interview to be tendered might be affected by later circumstances, perhaps wholly unexpected, which might even make the tender of a video record of interview or calling of a witness unfair. If the second question referred to the Full Court were understood literally as asking, at a point prior to trial, whether there will be a legal obligation for the prosecution to tender the video record of interview during the prosecution case at trial then the answer would be "Impossible to answer".
The manner in which this issue was argued in the Full Court and in this Court reveals that the second question can only be understood as asking about a breach of the prima facie content of the prosecutor's duty of fairness in the circumstances that existed prior to the trial. Understood in that way, the second question should be answered in the affirmative: on the information presently before this Court, and in the absence of any change in circumstances, if the prosecutor were to maintain his stance throughout the Crown case of refusing to tender the video record of interview then it is likely that his conduct would be a breach of his duty of fairness and would lead to an unfair trial and a miscarriage of justice.
The first referred question: admissibility of the "mixed" record of interview
Although the respondent orally queried the admissibility of the video record of interview, the respondent did not file any cross-appeal to challenge the answer given to the first question by the Full Court, that the video record of interview was admissible. It became common ground during oral submissions that the mixed video record of interview was admissible because it contains admissions.
The statements of admission in the video record of interview fall within the exception, in s 81(1) of the Uniform Evidence Act, to the general inadmissibility of hearsay evidence in Pt 3.2. This exception for admissions is broad. An admission by the accused is any previous representation that is "adverse to the person's interest in the outcome of the proceeding" whether by statement or conduct. Almost any statement or conduct, no matter how apparently innocuous, is capable of being an admission. It need not be against the maker's interest at the time it was made. It might not even be apparent prior to trial whether the statement is an admission. However, a substantial constraint on the matters which can constitute an admission is that the previous representation must be adverse to the interest of an accused "in the outcome of the proceeding". In other words, at the point in time that the admissibility issue is raised, there must be some possibility that the previous representation could have an effect upon the outcome of the proceeding that is adverse to the interest of an accused.
The existence, at the time of the admissibility dispute, of admissions in a video record of interview does not, by itself, make the whole video record of interview admissible. As to the remainder of the video record of interview, including self-serving statements, the Uniform Evidence Act generally reflects the previous, although criticised, common law position that hearsay statements that reveal a consciousness of guilt are generally admissible but hearsay statements that reveal a consciousness of innocence are generally inadmissible. However, one extremely significant departure from this general position is s 81(2), which permits evidence of any hearsay "(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and (b) to which it is reasonably necessary to refer in order to understand the admission". Section 81(2), like the common law that preceded it, has a primary underlying concern for the need for context for admissions. The context contemplated by s 81(2) is broad. For instance, in its application to video records of interview, it will often be reasonably necessary to see and hear self-serving statements by an accused person made in the same interview in order to consider why the accused person made admissions in that interview even if they might seem to concern matters unconnected to the self-serving statements. The expression of the self-serving statements might also reveal matters that could shape the precise meaning, purpose and weight of the admission such as the general demeanour of the accused person during the interview or how the accused person responded to the interviewer. For these reasons, it should be extremely rare for any part of the same interview to be treated as falling outside the necessary context for admissions contained elsewhere in that interview. Quite properly, this was not suggested to be the case in this appeal.
Although the concern of s 81(2) is context, the use to which the self-serving statements is put is not limited to mere context for the admissions. They are admissible for the truth of their contents. One reason for this is that they might be difficult or impossible to separate from the admissions. Another is that they might qualify or modify the admissions, which are admitted as evidence of the truth of their contents. A third is the unintelligibility of a direction to the jury that some previous statements are admissible for the truth of their contents but others are something less although made at about the same time, such as in the same interview. It would be, "to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state". And, contrary to the approach in England, which countenances a usual direction by the trial judge that "incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight", such a general statement has been held in Australia to be an "unwise" direction and an "undesirable" one to the extent that it expounds traditional reasons why admissions against interest are commonly regarded as reliable evidence.
There is another basis relevant to this appeal upon which the entirety of a mixed record of interview might be admissible. Section 190 of the Uniform Evidence Act, enacted against an understanding that the laws of evidence were "often waived by parties in litigation", permits the court to dispense with the application of the hearsay provisions in Pt 3.2. The consent of the parties is required, including the advised or informed consent of an accused person.
Mr Nguyen, with legal advice, had sought the tender of the video record of interview by the prosecution. For "tactical" reasons the prosecution said that they did not intend to tender the video record of interview, asserting that "there's no unfairness involved in doing things this way ... the accused is able to give evidence if he wants to and, of course, if he does then he'll be subjected to cross-examination".
The second referred question: an "obligation" upon the prosecution to tender the mixed record of interview
The obstacles of principle to the purported pre-trial legal obligation
There is a strong analogy between a so-called obligation prior to trial upon the prosecution to tender a video record of interview and a so-called obligation prior to trial upon the prosecution to call a witness. Indeed, the existence of a legal obligation upon the prosecution, prior to trial, to tender a video record of interview might involve an obligation to call a person, such as a police officer who conducted the interview, who could tender the video record of interview. The ethical practices for prosecutors generally to undertake, where requested prior to trial, to tender a video record of interview or to call relevant witnesses are aspects of the prosecutor's duty of fairness. There are three reasons that point strongly against elevating them to the status of free-standing obligations.
First, any attempt to carve an independent obligation in advance of trial to tender a video record of interview from the general duty of fairness existing in all of the circumstances of the trial would require numerous exceptions and qualifications which would prevent the obligation from being stated in anything other than vague, contingent terms. For instance, an obligation upon the prosecution to call a witness or to tender a video record of interview could not exist if, in the circumstances of the trial that unfolded, the evidence was immaterial. If a hundred people saw an accused person at the scene of the crime, whose image was also captured on CCTV, then the prosecution could not be obliged to call all of the hundred people to give evidence. And in such a case, at least if the accused did not request its tender, the prosecution could not be obliged to tender a video record of interview in which the accused said no more than to acknowledge their presence at the scene of the crime.
Another exception to any purported prosecutorial legal obligation in advance of trial to tender a video record of interview would be where evidence called by the prosecution during trial made it manifest that, by reference to clear and objectively identifiable circumstances, the accused's answers in the interview as a whole were plainly false or fanciful or were plainly unreliable.
A further exception to such a pre-trial obligation, which could potentially undermine it entirely, would be that such a pre-trial obligation would necessarily be subject to the prosecutor's overriding duty to conduct the trial fairly. A prosecutor could not be obliged to tender a video record of interview if it were apparent at the time of tender, either from previous circumstances or from events that arose during trial, that the tender would cause legal unfairness to the conduct of the defence. In such circumstances, the prosecutor would not merely be permitted to accede to the request of an accused person not to tender the video record of interview; the prosecutor would be obliged to do so. Thus, the relevant prosecutorial duty is not concerned with the prosecutor's decision to tender the video record of interview but, instead, with the overall fairness in the conduct of the trial.
Secondly, a curious, even bizarre, attribute of a so-called pre-trial prosecutorial legal obligation to call a witness or to tender a video record of interview is that it would be one that a trial judge would be incapable of enforcing. Trial judges have powers to enforce the prosecutor's duty to act fairly in order to ensure a fair trial without descending into the adversarial arena. Their powers include a range of directions and orders including, in the most extreme cases of unfairness, the grant of a permanent stay of proceedings where other measures cannot be taken to ameliorate a substantial unfairness in the trial. In contrast, a trial judge has no power to enforce any perceived pre-trial "obligation" to tender a video record of interview. As this Court said in R v Apostilides, the trial judge "cannot direct the prosecutor to call a particular witness". Nor could a trial judge direct a prosecutor to ensure that evidence is tendered. In Apostilides, this Court also referred to discussion of Brinsden J in Skubevski v The Queen, including his Honour's quotation from Barwick CJ in Ratten v The Queen:
"[A criminal trial] is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law."
Thirdly, even on an appeal which raised issues concerning the failure by the prosecution to call a witness, the question would not be whether the prosecutor was obliged to call the witness. The question would be whether a decision by a prosecutor not to call a particular person as a witness constituted a ground for setting aside the conviction because it gave rise to a miscarriage of justice "when viewed against the conduct of the trial taken as a whole". That question is plainly not to be assessed from a perspective before the trial took place.
The obstacles of authority to the purported pre-trial legal obligation
In Skubevski v The Queen, Mr Skubevski was charged with wilful murder arising from a brawl between a group of Aboriginal men and a group of Macedonian men. The Crown called all of the Aboriginal men but none of the Macedonian men. After the prosecutor refused to comply with a direction by the trial judge to call the Macedonian men, the trial judge discharged the jury, adjourned the trial, and referred questions for consideration by the Court of Criminal Appeal of the Supreme Court of Western Australia. The Court of Criminal Appeal accepted the Crown submission, not made on the present appeal, that the reference of most of the questions was incompetent because for all practical purposes the trial was at an end. Nevertheless, the Court expressed an opinion on the questions. After explaining that the prosecutor was legally entitled not to call the Macedonian men as witnesses, the Court of Criminal Appeal explained, in answer to one of the questions (Question 4), that it had no power to "express an opinion upon whether in the circumstances the discretion ought to have been exercised in the manner in which it was". Burt CJ, with whom Smith J agreed, said this:
"For the purposes of Question (4) it is, I think, important to appreciate that we are not being called upon to say whether there has been a miscarriage of justice, that being a question which cannot arise at this point of time. As the question now arises before us it should be answered 'No'. A decision of Crown counsel to call or not to call a witness cannot be reviewed or challenged within the trial in which that decision is made. It is no doubt possible that such a decision could give rise to a miscarriage of justice. As such it would be examinable on appeal. But that is a different matter."
The point being made by Burt CJ is that there is a difference between, on the one hand, asking an appellate court directly to review a decision of a Crown prosecutor about whether to call a witness when the prosecutor has no legal duty to do so and, on the other hand, asking an appellate court to make an assessment of the fairness of a trial, such as that made in the context of an appeal from conviction. The distinction may be a fine one but it is one that this Court also made in its decision in Richardson v The Queen nearly half a century ago, in terms that have been approved or followed on many occasions. This Court acknowledged that a failure by the prosecutor to call a particular witness might give rise to a miscarriage of justice "when viewed against the conduct of the trial taken as a whole" but concluded that the prosecutor does not owe a specific "duty" to call any witness:
"It is, therefore, a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged. The misconception has arisen, we venture to think, from treating some observations in the decided cases, which have been made with the intention of offering guidance to prosecutors in how they are to approach their task, as the prescription of an inflexible duty to call all material witnesses, subject to certain exceptions or to special circumstances."
A prosecutor is under a continuing duty to act fairly
For the reasons explained, any "requirement" for a prosecutor to call witnesses or to tender evidence "is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor". Those functions can often be performed in different ways but the underlying principle which governs their performance is that the prosecutor is under a continuing duty to conduct the trial fairly. In Attorney-General (NT) v Emmerson, six members of this Court described the "traditional considerations" of fairness as standards that arise from "rules of practice; established by judges over the years ... calculated to enhance the administration of justice by ensuring that an accused has a fair trial".
The requirements of the duty of fairness are neither rigid nor static. They vary according to the circumstances of the particular accused person and the changing circumstances of the case, and over time can even change with changing social values. However, it is now well established that the prosecutor's duty of fairness requires that decisions about whether to call a witness "be made with due sensitivity to the dictates of fairness towards an accused person".
The only sensible meaning of the second referred question
In light of the insurmountable obstacles of principle to the recognition of a legal obligation existing before trial to tender a video record of interview, and in light of nearly half a century of consistent authority, the only sensible way to understand the question whether, prior to trial, the Crown could be said to be "obliged to tender the recorded interview" at trial is to see it as instead inviting the enunciation of a "prima facie rule of practice", a general guide to the ethical practice which informs the prosecutor's duty of fairness, the departure from which in the trial could be productive of a miscarriage of justice. Mr Nguyen's submissions on appeal should be understood as submissions that, subject to events that might emerge at trial, the pre-trial prima facie content of the prosecutor's duty of fairness included an undertaking, where requested, to tender the video record of interview.
The breach of the prosecutor's duty of fairness
A prima facie rule of practice that admissible video records of interview be tendered
As I have explained, the video record of interview was admissible evidence which could be tendered by the prosecution on two different bases. One basis was that it contained admissions (s 81 of the Uniform Evidence Act). And since Mr Nguyen sought the tender of the interview with informed consent, the other basis was by consent of the parties (s 190 of the Uniform Evidence Act). Either basis required the prosecutor's decision to be made fairly, in light of general rules of ethical practice. Once the decision to tender the interview was taken, the entire interview (as edited by consent of the parties to remove anything inadmissible to which objection is taken) would have been required to be tendered: the prosecution would be "bound to take the good with the bad and put it all before the jury".
The starting point for the prosecutor's preliminary view about whether to tender the video record of interview, subject always to any issues that might later emerge during trial, should have been that "the prosecutor's obligation to put the case fairly would, on its face, require the prosecutor to put the interview in evidence unless there were some positive reason for not doing so". In Mahmood v Western Australia, this prima facie requirement for fairness was expressed by Hayne J as an ordinary requirement. His Honour said of admissible mixed statements that "fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence". Those words were carefully chosen. They did not assert a legal obligation to call evidence. Instead they directed attention to the unfairness that might result from a failure to do so. Contrary to the reasoning of McLure P in Ritchie v Western Australia, the reasoning of Hayne J was not obiter dicta, nor was it inconsistent with the joint reasons of the other members of this Court in Mahmood, who did not address this issue. Nor was his Honour's reasoning confined to cases where there are several out-of-court statements.
The reasons that underpin this prima facie ethical rule of practice that informs the prosecutor's duty of fairness are several. First, the video record of interview is usually an early response, sometimes the first opportunity, of an accused person confronted by the allegations. The fading and plasticity of memory and the cognitive processing of the allegations between interview and trial can make recollection and response at trial less accurate and more generalised than recollections and responses closer to the events and in the absence of adversarial dispute. Secondly, the tender of a video record of interview avoids, more conclusively than any direction, any adverse speculation by the jury about whether an accused gave any account of their actions when confronted by the police. Thirdly, and in the almost invariable circumstance that the interview contains some admissions, the prima facie requirement to tender a video record of interview in conformity with the duty of fairness avoids the risk that the prosecutor might present a less than complete picture of the Crown case based upon an inaccurate prediction of the likely materiality of admissions in the defence case.
Breach of the prima facie requirements of the duty of fairness
In this case, as the North Australian Aboriginal Justice Agency submitted in its intervention, the prima facie requirement of the duty of fairness was further enhanced by Mr Nguyen's linguistic and cultural disadvantages and his expectation at the time of giving the interview that it would be tendered in court. The video record of interview of Mr Nguyen was undertaken after the police had given Mr Nguyen a caution, following the general approach described in the Anunga rules, in an attempt to ensure fairness in the interview of Mr Nguyen as a vulnerable or disadvantaged person. After Mr Nguyen, who was assisted by an interpreter, was asked to explain the caution in his own words he said: "Whatever you ask and whatever I answer will be taken as evidence in the court."
When counsel appearing for the Director of Public Prosecutions was questioned by the trial judge about the reasons why the video record of interview would not be tendered, his explanation was that it was a "tactical decision". It was a decision taken not to adduce evidence of admissions which would otherwise be part of the prosecution case in order to require the accused man, with cultural and linguistic disadvantages that are plainly evident from the interview, to expose himself to cross-examination in order to put his account of events before the jury. This reasoning process was not consistent with the prosecutor's duty of fairness. In the absence of any compelling reason for the prosecution not to tender the record of interview, the maintenance of that refusal at trial is extremely likely to have been productive of an unfair trial with the consequence that any conviction would have involved a miscarriage of justice.
In this Court, senior counsel for the respondent relied upon an alternative purported reason for the refusal by the prosecution to tender the video record of interview. This reason was that the interview contained no material admissions in the sense that any admissions possessed such a low degree of relevance that they could not be admissible. The submission that the interview contained no material admissions could not be maintained in the absence of a cross-appeal on the answer to the first question given by the Full Court. If a cross-appeal had been brought and if it had been concluded that there were no material admissions there would then have been a need to consider other relevant aspects of the video record of interview when considering the duty of fairness in relation to s 190 of the Uniform Evidence Act.
The submission that the interview contained no material admissions was not ultimately pressed on this appeal. It suffices therefore to make only two general observations about the submission concerning "immateriality" - that is, an extremely low degree of relevance. First, in circumstances where Mr Nguyen was alleged to have caused serious harm to one man by throwing a beer bottle at him or hitting him on the head with the bottle, as well as throwing another bottle at another man, the admissions by Mr Nguyen that he threw bottles at those men were plainly more than minimally relevant. In Dyers v The Queen, speaking of a usual requirement of the duty of fairness that the prosecution call all material witnesses, Callinan J said that a "broad practical view of materiality should be taken". This is particularly so because the precise contours of the issues at trial are not always clear at the time prosecution witnesses are called. His Honour said that admissible evidence is material if it could "reasonably influence a jury on the question of the guilt or otherwise of an accused". It will be rare for an admission in a video record of interview to fall outside that description of materiality.
Secondly, even in the rare instance where, prior to trial, a prosecutor correctly considers that an admission might be immaterial to the issues that, objectively, are likely to unfold during the trial, this does not necessarily mean that it will be fair for the prosecutor to refuse an informed request to tender the record of interview. The reasons for the prima facie requirement of the duty of fairness, discussed above, will not necessarily be overcome merely because the admissions are, in the events existing prior to trial, objectively likely to be immaterial.
Conclusion
The appeal should be allowed and orders made as proposed in the joint judgment, with the second question to be understood as expressed in these reasons.