EVIDENCE - Unfavourable witness - Evidence Act 2008 (Vic) s 38 - Leave to cross-examine generally - Evidence affecting witness credibility - Prior inconsistent statements - Evidence of facts asserted - Evidence Act 2008 (Vic) ss 43, 60 - Adam v The Queen (2001) 207 CLR 98; R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474, considered.

CRIMINAL LAW - Evidence - Plea of guilty by co-offender and prosecutor's summary of facts - Whether a course of conduct on plea constitutes an implied representation as to facts in summary - Whether prior inconsistent statement - Evidence of accused's guilt - Direction not required - Forensic decision not to seek direction - No substantial miscarriage of justice.

EVIDENCE - Whether evidence of co-offender's plea of guilty an 'admission' - Evidence Act 2008 (Vic) ss 60(3), 83.

1 This is yet another appeal which concerns issues not raised at trial and which are now agitated for the first time on appeal. The appellant seeks to set aside his conviction on charges of aggravated burglary, armed robbery, false imprisonment, recklessly causing injury and possessing an unregistered general category handgun on two grounds. First, that the trial judge erred in admitting into evidence the plea of guilty, and the course followed on the plea, by a co-offender, one Salisbury, who was called as a prosecution witness. Second, that the trial judge failed to direct the jury that they could not use such evidence as evidence of the appellant's guilt.

2 The Crown case may be summarised as follows. Salisbury, together with one Brendan Kirkwood and the appellant, broke into the victim's home and committed all of the offences with which he was charged. The appellant, who was a 'good mate' of Salisbury, had introduced Salisbury to Kirkwood. The three of them planned the break-in, and had driven over to look at the victim's house two days before the robbery. On the night of the break-in, the appellant, together with Kirkwood and Salisbury, gathered at Salisbury's home. The appellant and Salisbury left their wallets at Salisbury's home. Kirkwood also left some personal papers. The three of them drove in the appellant's car to a reserve about one kilometre from the victim's house where they intended to rob him of cash and drugs. According to Salisbury, he went to the back door while the appellant and Kirkwood went to the front door. They wore balaclavas and gloves and had a firearm and other weapons. They also had cables and tape to tie up the victim. The appellant, once in the house, opened the back door for Salisbury. Salisbury, the appellant and Kirkwood tied up the victim and threatened him with the firearm. The victim was forced to provide the combination of a safe from which the three of them stole money. They also took drugs from the victim, including cannabis which they intended to share and smoke. They were all cannabis users. The three of them then left the scene in the appellant's car. The appellant was driving. Kirkwood sat in the front passenger side of the car. Salisbury was in the rear of the car on the passenger side of the car. There was a baby capsule on the rear driver's side of the car. The police noticed the car and put on their lights. When the appellant stopped the car the police observed Kirkwood exit the vehicle and run away. The appellant and Salisbury remained in the car and were then arrested. The firearm, which was in a blue bag, along with cables, tape, and other items used in the robbery, drugs stolen in the robbery and other items taken from the victim's house, were found when the appellant and Salisbury were apprehended. On the front passenger seat, the police found various boxes of the victim's medication. The appellant had a pair of gloves used in the robbery in his pocket. He had his jeans tucked into his socks, as did Salisbury. Both he and Salisbury were sweating profusely. They had run to the car from the victim's house. The appellant and Salisbury's wallets were later found at Salisbury's home, adjacent to papers of Kirkwood and a pair of gloves of the same type as those in the appellant's possession.

3 There was no issue that the offences with which the appellant was charged were committed by three offenders, two of them being Salisbury and Kirkwood. The appellant's defence was that he was not the third man who robbed the victim. The sole issue at trial was the identity of the third man. The appellant's evidence at trial was that he was asked by Salisbury to drive him and some other men to premises where they intended to buy some drugs. He collected Salisbury, Kirkwood and a friend of Kirkwood's called 'Aje' from Salisbury's home and dropped them off at a reserve which the appellant understood was some distance from the victim's house. The appellant was told that they would give him some of the cannabis they obtained. He did not wait for the three men to return but later returned as he wanted to get his wallet back and also wanted to get the cannabis they had promised him which he wanted to smoke. When the police were first observed following them, the appellant stopped the car, whereupon Aje opened the back door and got out of the vehicle. The appellant would not let Kirkwood exit the car. He drove off, but stopped shortly afterward when the police put on their lights. Kirkwood then exited the vehicle and ran away and the police apprehended the appellant and Salisbury in his car. He denied that he had had any prior discussions with Salisbury about robbing the victim and stated that he had no knowledge of their intention to do so. He was not aware of the firearm or the cables or tape that they had brought with them. The gloves he had in his possession were used by him for changing his daughter's nappies.

4 Salisbury was called by the Crown. During his evidence in chief, he departed from his proof of evidence (his record of interview and police statement) and asserted that another man, not the appellant, was the third of the three men who committed the offences and that the appellant had only driven the three of them to a reserve some distance from the victim's house, where they departed the vehicle and left the appellant to go to the victim's house.

5 The Crown sought leave under s 38 of the Evidence Act 2008 (Vic) ('EA') to cross-examine Salisbury as an unfavourable witness. After hearing submissions from both the Crown and counsel for the appellant, and subject to one limitation presently of no relevance, the prosecution was given general leave to cross-examine Salisbury pursuant to s 38(3) of the EA as an unfavourable witness. That leave extended to matters relevant to Salisbury's credibility, as well as to establishing prior inconsistent statements.

6 Upon the commencement of the prosecutor's cross-examination, Salisbury accepted that at the time he spoke with police he thought that his statement to the police was true. He confirmed his earlier testimony that if something was in his statement it was probably more accurate than the evidence he was now giving, and that if it was in the statement it represented what he had thought to be true at the time. The prosecutor then elicited the content of Salisbury's interview and statement to police, including the fact that he had referred throughout to the appellant being the third man involved in planning and committing the offences. Salisbury repeated that most of what he had told the police was true save for those parts that suggested that the appellant was one of the three offenders. Salisbury gave two explanations for having told police that the third man who committed the offences was the appellant. The first was that he was mistaken as to the identity of the third man, who wore a mask during the break-in. He said that he now appreciated, as a result of what he had been told by other persons unnamed, that it was another man, not the appellant, who broke into the victim's house with them. The second inconsistent explanation was that the police had told him that the appellant had admitted that he was one of the offenders, so he nominated the appellant as the third offender even though he knew it to be false.

7 The content of Salisbury's interview and statement became prior inconsistent statements within the meaning of s 43 of the EA. Pursuant to s 60 of the EA, the prosecution then became entitled to, and did, rely upon their content as evidence of the truth that the appellant was the third co-offender that robbed the victim. The statement to police, and the video interview and a transcript of it, were all tendered in evidence.

8 As a result of the trial judge's discussion with counsel in the jury's absence, it became apparent that the trial judge anticipated that the prosecutor would examine Salisbury about what occurred on his plea when he was convicted and sentenced. Salisbury was subsequently cross-examined as to what occurred on his plea, though not as extensively as the trial judge had anticipated. The prosecutor elicited, in a series of five consecutive questions, the fact that Salisbury had pleaded guilty to charges arising out of 'this incident', and that he did not dispute that the prosecution summary which was read out to the Court on that occasion was consistent with what Salisbury had told the police, including the fact that the three offenders were Salisbury, Kirkwood and the appellant.

9 Apart from that evidence of what occurred on his plea, he also agreed that before his plea and sentence he had seen a psychologist, and that on the plea he had probably played down the effects of any drugs on him that night.

10 Neither during his evidence, nor at any later stage of the trial, was the evidence of Salisbury's plea or what was said at the plea the subject of any objection. At different stages of the argument on appeal it was said to be evidence that was either inadmissible or admissible only as to Salisbury's credit. For the reasons that follow, the evidence was admissible both as going to his credit and as evidence of the appellant's guilt. Significantly, it was not explained on appeal on what basis the trial judge should have intervened to prevent its admission.

11 No other evidence touching upon Salisbury's plea of guilty or the prosecution summary was given in the trial. Salisbury's plea of guilty was referred to in passing by the prosecutor in closing address as part of the narrative of Salisbury's evidence. The only other reference made by either party to the course followed by Salisbury on his plea was the prosecutor's reference to the fact that Salisbury had been sentenced by the time of the appellant's trial. She said:

Of course I will be asking you to rely on what he said in his statement, so let's look at the reliability of what he said at the time. Firstly, as I said, Mr Salisbury has already been sentenced and he did not receive any benefit for coming to give evidence, called by the prosecution in this case.

12 Nothing else was said by either party about Salisbury's sentence, the plea of guilty, or the prosecution summary of facts read out on Salisbury's plea. In particular, the prosecution did not place any reliance upon Salisbury's plea or his evidence of the content of the prosecution summary of facts on his plea. The jury were never invited to use the bare plea or the summary of facts as evidence of the appellant's guilt.

13 The trial judge gave directions in accordance with the issues raised by the parties. The trial judge did not refer to Salisbury's plea of guilty in his charge or to the prosecution summary of facts. No exception was taken to the charge.

14 The appellant's two grounds, and the primary argument pursued at the hearing of the appeal, focussed upon the particular evidence of Salisbury that he had pleaded guilty. The appellant maintained that the evidence had been wrongly admitted and that, in the absence of a limiting direction, the jury may have used Salisbury's plea of guilty as evidence of the appellant's guilt, thereby giving rise to a substantial miscarriage of justice.

15 Following the conclusion of the oral hearing of the appeal, the parties were asked to address the evidentiary consequences of all of Salisbury's evidence as to what occurred on his plea, including the content of the prosecution summary of facts read out to the sentencing court following the plea of guilty. As Priest JA has conveniently set out in some detail the supplementary submissions later received from the parties, it will be necessary to refer only to some of their contentions.

16 (i) The evidence of Salisbury's bare plea of guilty, elicited in cross-examination of Salisbury as an unfavourable witness, was admissible as a matter bearing upon his credibility. The prosecution relied upon it as showing that he was not influenced by any motive to shift the blame for the offence to another.

(ii) Upon the prosecution obtaining leave to cross-examine Salisbury pursuant to s 38 of the EA, his credit was in issue.

(iii) Salisbury's plea of guilty and the prosecutor's summary of facts (together, 'Salisbury's course of conduct on the plea') was accepted on the appeal by both parties to be admissible as evidence bearing upon Salisbury's credibility. There was no perceptible risk that the jury would misuse Salisbury's plea of guilty to conclude that the appellant was guilty. Unlike cases where the plea of the co-offender may be misused when the commission of the crime is in issue or the accused does not dispute that he was in the company of the co-offender at the time the crime was committed, the sole issue at this trial was whether the appellant was one of the three men who committed these offences. The bare evidence of Salisbury's plea of guilty to some of the offences arising out of the incident would not support any reasoning that the appellant was one of the offenders.

(iv) The evidence of Salisbury's course of conduct on the plea was also admissible as proof of the appellant's guilt. The plea of guilty, in conjunction with the summary of agreed facts, constituted an 'implied representation' (in particular that the appellant was the third man) or a representation that could be 'inferred from conduct'[1] under the EA. Had the evidence been the subject of discrete attention during the trial, the representation by conduct would have constituted a further prior inconsistent statement that the three offenders were Salisbury, Kirkwood and the appellant. The appellant was advantaged by the fact that the relevance and probative value of Salisbury's course of conduct on the plea was not the subject of any specific attention.

(v) The course of the trial did not make it necessary that the trial judge provide the jury with instruction as to how Salisbury's plea of guilty or the summary of facts might be used.

(vi) There was an obvious forensic advantage for the appellant not to explore in evidence what Salisbury did on his plea or sentence, or to raise with the trial judge the issue of what use could be made of the evidence that the prosecutor had elicited. The appellant cannot now be heard to complain that the evidence should have been the subject of a direction.

(vii) The conviction of the appellant was inevitable, even if Salisbury's course of conduct on his plea had been excluded or a direction had been given limiting its use.

When may a co-offender's or accomplice's plea of guilty be admitted into evidence and when will a direction as to its use be required?

Bare plea of guilty admissible where witness's credit has been put in issue

17 On the hearing of the appeal, the appellant sought leave to add the following ground:

(5) A substantial injustice was occasioned by evidence of the plea of guilty of Salisbury being admitted into evidence.

18 It is well settled at common law that a bare plea of guilty by a co-defendant, accomplice or witness otherwise complicit in the crime with which the accused is charged ('co-offender') is not evidence of the accused's guilt. The accepted principle is that a co-offender's confession is evidence only against themselves and not against other defendants.[2] The guilty plea by itself establishes only that the co-offender has admitted guilt of the offence as charged. It includes nothing more than an acknowledgement of the essential legal ingredients of the offence.[3] The co-offender's bare plea of guilty has no relevance and is inadmissible as proof of the accused's guilt.

19 Although the evidence of a co-offender's bare plea of guilty may not be used as evidence of the guilt of the accused, the authorities to which we shall now refer show that such evidence may be relevant to the co-offender's credit and therefore admissible.

20 In R v Ristic,[4] the applicant had been charged with three counts of burglary and three alternative counts of handling. After a trial, he was found not guilty on the burglary counts but convicted on the three handling counts. Evidence was led that two others who were implicated on the evidence had pleaded guilty to handling and been convicted. Relevantly Starke J, with whom Murphy and Marks JJ agreed, said:

[T]hat they had pleaded guilty goes to, and only to, in this case, the question of the credit of these two young women. In other words, the Crown wished in-chief to bolster their credit by suggesting that having been dealt with they had no motive for trying to shift the blame from themselves to somebody else. This, of course, in certain circumstances is legitimate although such evidence cannot be conclusive because, for instance, the plea of guilty may have been a result of plea bargaining below ...

The circumstances when this sort of evidence can be admitted are these: it is often put to a witness, who has been an accomplice or apparently been an accomplice, by the defence in cross-examination that they have been charged with and not dealt with for this same offence and, in those circumstances, of course, the defence suggest - and it is a perfectly proper and very strong suggestion in some cases - that the witness has a very strong motive for shifting the blame from himself or herself on to the accused.

In certain circumstances when such cross-examination is conducted, it is clearly open to the Crown to prove, if they can, by re-examination that they have been dealt with already by way of rehabilitation of the witness' credit. But in this case no such thing occurred.[5]

21 The credit of the two witnesses not having been impugned, the Court of Criminal Appeal found that the fact that the two witnesses pleaded guilty was irrelevant and inadmissible and should have been excluded. Although an error had been made, the applicant's application for leave to appeal against conviction was refused because it had been remedied by the trial judge's redirection, in which his Honour clearly stated that the pleas of guilty of handling by the co-offenders were not any evidence against the accused man of his being guilty of handling.

22 In R v Gallagher,[6] the applicant had been convicted on 20 counts of receiving secret commissions. In the course of his opening, the prosecutor told the jury that the 'givers of corrupt gifts' (in relation to the transactions forming the basis of the charges against the applicant) had pleaded guilty and been dealt with. The prosecutor also told the jury that such evidence was not capable of being used against the applicant. No objection had been made when the prosecutor had intimated his intention to call such evidence. The prosecutor led evidence from the relevant witnesses as to the particular charges which they had faced and for which they had been dealt with. One ground of appeal alleged error for failure to discharge the jury in circumstances where inadmissible evidence was opened to the jury, notwithstanding counsel's failure to object. In the joint reasons of Young CJ, Kaye and Gray JJ, their Honours said:

[T]he Crown was not entitled to open or lead evidence of any developer having been charged, brought before a Court, pleaded guilty or convicted until the issue of the credit of a particular witness had been put in issue.[7]

23 It is also of relevance to the present appeal that the wrongful admission of the evidence did not lead to a miscarriage of justice, as counsel had refrained from objecting to the fact of their pleas being placed before the jury.

24 In Cowell[8] the appellant was accused of indecently assaulting a woman. In opening, the Crown informed the jury that a co-offender, Burns, had been with the appellant and the complainant during the relevant evening and had been charged with an offence arising out of his misconduct towards the complainant, and that he had pleaded guilty. The appellant was charged on the basis that he had acted in a 'common or joint venture' with Burns.[9] The offence alleged was in dispute, as was the appellant's presence at the time. Burns was said to have committed the offence. Street CJ noted that what offence Burns had pleaded guilty to was not known, nor was it known whether it was an offence said to have been committed with the appellant.[10] Street CJ observed that proper directions ought to have been given by the trial judge on how the jury could use the plea of guilty by Burns:

It would, however, have been necessary to ensure that the jury fully understood that Burn's plea of guilty should not be regarded by them as creating an aura of criminality surrounding the events of that night within which the question of the appellant's guilt fell for determination.[11]

25 In R v Fountain,[12] the applicants, Fountain and Tootell, sought leave to appeal against convictions on charges of recklessly causing serious injury and attempting to pervert the course of justice on the ground that the judge had erred in failing to give any directions to the jury in respect of the use the jury could make of the evidence of co-offenders who had pleaded guilty to the same offences upon which the applicants were tried.

26 The case concerned the severe beating of a patron outside a hotel. There was no dispute that the complainant had been injured in a fight outside the hotel and that the applicants had been present at the scene. Two employees, Ryan and Luckman, had previously pleaded guilty to the very offences for which Fountain and Tootell were being tried. Fountain was the manager of the hotel, or at least in charge at the time of the incident. The Crown alleged that Fountain's son, Tootell, fought with the complainant, and then beat and kicked the complainant when he was subdued on the ground, with the help of Ryan and Luckman. The Crown alleged that Fountain stood by encouraging her son Tootell, Ryan and Luckman in beating the complainant, who was severely injured. Fountain and Tootell sought to defend the charges on the grounds of self-defence.

27 At the trial of Fountain and Tootell, both Ryan and Luckman gave answers under cross-examination which supported the view that the applicants had acted in necessary self-defence in the encounter with the complainant. To rebut this evidence, the Crown put to each of Ryan and Luckman that they had pleaded guilty to the very offences upon which the applicants were being tried and that their plea was inconsistent with the version they gave in evidence.

28 In final addresses, the Crown told the jury that the fact that Luckman and Ryan had pleaded guilty could not be used against the applicants because everybody was entitled to an individual trial, and the defence in its address made the same point. No mention was made of these matters by the trial judge. The Crown prosecutor said:

But the bottom line is, is that all those men gave evidence on oath about and two of them have pleaded guilty in relation to these offences. What, pleaded guilty to nothing, if it was justified? The fact that they pleaded guilty can't be used against these respective accused people because everybody is entitled to an individual trial. You have to assess the evidence against each particular person. But nevertheless the significance is that these two men admitted their guilt in unlawful behaviour and gave evidence of it. So really the scenario is that even in cross-examination, particularly in relation to Luckman who you might well think was almost ashamed to be in the witness box and admit what had happened on that particular night. That he was quite prepared almost to say, well, yes, the actions were justified but that was totally inconsistent with his behaviour leading up to this trial and his admissions and pleas of guilty in relation to these matters.[13]

29 Charles JA (with whom Buchanan and Chernov JJA agreed), citing R v Burnett[14] and Cowell,[15] observed that those 'cases made it clear that where there is a danger that the jury might use evidence of a plea of guilty as tending to prove the guilt of the applicants, the jury must be directed against such reasoning'.[16] His Honour added:

There was, I think, plainly a possibility that the jury would make improper use of the evidence that Luckman and Ryan had pleaded guilty to the same offences. The prosecutor's submission to the jury certainly did not make it clear that the pleas of guilty by Luckman and Ryan could only be used to rebut any contention by the defence that pressure had been placed by the investigating police officers upon these witnesses to make a statement in support of the prosecution case or to undermine the concessions made by the witnesses under cross-examination in favour of the case of self-defence made by the applicants. On the contrary it seems to me that the prosecutor's words invited the jury to treat the pleas of guilty as evidence tending to establish the guilt of the applicants. On this basis the evidence clearly had the potential to be prejudicial to the applicants who were being alleged to be co-offenders of the persons who had pleaded guilty. In these circumstances the judge should have warned the jury appropriately, as stated in Cowell and Burnett. I would uphold these grounds also.[17]

30 From the passage we have quoted, it is clear that the co-offenders' pleas were admissible as bearing upon their credit in the ways Charles JA describes. Although the pleas were admissible, the Court accepted the applicants' submission that there was a danger that the jury might use the evidence as tending to prove the applicants' guilt. Three reasons explain that conclusion. First, it was not in issue that the applicants were present and had participated in relevant ways in the physical acts relied upon by the prosecution. Second, by raising self-defence the defence put in issue whether any offences had been committed at all. Third, the prosecution submission impermissibly sought to use the co-offenders' pleas as going not only to their credit but invited reasoning that it was evidence of the accuseds' guilt.

31 Next we refer to the case of R v Walsh[18] in which the evidence of guilty pleas from co-conspirators was placed before the jury on a charge of conspiracy. The applicant asked the Crown to open and lead evidence of the co-conspirators' pleas. The applicant's submission on appeal, that the relevance of the plea was to undermine the credit of those who gave evidence, does not appear to have been doubted by Phillips and Buchanan JJA in their joint judgment, with which Ormiston JA agreed.[19] But in his closing address, the prosecutor referred to the pleas of guilty and said:

During his cross-examination, Mr Walsh accepted that there was indeed a conspiracy to defraud the trust. We say that he could hardly do otherwise in view of the substantial body of evidence which establishes that fact. Nor indeed could he deny the existence of a conspiracy to defraud the trust in light of the fact that both [co-conspirators] had pleaded guilty to such a conspiracy. Indeed, you heard, not only did they plead guilty to participating in the conspiracy to defraud the trust, but they also pleaded guilty to having conspired with Mr Walsh to do so. ...

But the live issue in this case, and Mr Walsh, I think, accepted this as well, is whether the Crown has proved beyond reasonable doubt that Walsh was a party to that conspiracy.[20]

32 The complaint made on appeal was that the prosecutor's words were apt to invite the jury to treat the pleas of guilty as evidence to establish the guilt of the applicant so that the jury ought to have been directed that the pleas of guilty were not to be used in any way as evidence against the applicant. In rejecting this argument Phillips and Buchanan JJA concluded:

It may be that the co-conspirators pleaded not only guilty but guilty to having conspired with Walsh, but the jury were immediately told that the crux of this trial was whether Walsh had joined them in their conspiracy. In context the passing comment of prosecuting counsel to which exception is now taken could not have mattered, and the failure to take exception below is readily understood. The failure to take exception may not be fatal in such cases per se, but it is fatal when the failure to take exception was because exception was scarcely warranted.[21]

33 We turn then to the case of Bou-Elias v The Queen,[22] which the Crown rightly submits was very similar to the present case. There the appellant appealed against his conviction for aggravated burglary, affray, causing injury recklessly and threat to kill on the grounds that the trial miscarried by reason of the jury having been told that the accomplice, Murat, had pleaded guilty and been 'dealt with' for the very offending the subject of their consideration and that the judge had failed to direct the jury in terms sufficient to guard against their impermissible use of Murat's plea and disposition. The Court (Mandie JA, with whom Neave JA and Cavanough AJA agreed) dismissed the appeal.

34 The appellant was accused of being one of four men who entered a nightclub and terrorised and assaulted the patrons. The prosecution case was that the appellant, acting in concert with Murat and two other men who had entered the night club, had committed the offences charged.[23] It was alleged that the appellant was armed with a gun at the time. Murat, one of the alleged offenders, was called by the Crown to give evidence against the appellant.

35 Mandie JA summarised the relevant evidence as follows:

In his initial evidence at trial of the appellant, Murat denied that the appellant was present at the premises and also denied seeing any gun. The prosecutor was granted leave to cross-examine Murat pursuant to s 38(1) of the Evidence Act 2008. The prosecutor cross-examined Murat in relation to the statement that Murat had made to the police in August 2007. Murat agreed that he had made the statement and sworn it before the informant. Murat also admitted that he had participated in the record of interview but he said that the matters in the statement and the record of interview were not true (including the statement that the appellant entered the premises with him and had a gun).

References were made during the cross-examination by the prosecutor to the fact that Murat had pleaded guilty in October 2008 in the County Court to a charge relating to the events the subject of the trial.[24]

36 Mandie JA also referred to cross-examination by counsel for the appellant who also put to Murat that he had been charged and sentenced for offences relating to the incident. It was thus not in issue that the evidence of Murat's plea of guilty was admissible as going to his credit.[25]

37 Mandie JA also distinguished Fountain,[26] finding that Murat's guilty plea could not have assisted the jury to establish or tend to establish the appellant's guilt. His Honour said:

Fountain and Tootell is very different from the present case. In that case, the presence of the accused at the scene was not disputed but it was claimed that they had acted in self-defence. Therefore, the guilty pleas by the co-accused to similar or identical charges in relation to the same incident could have been viewed as very significant and, without adequate directions by the judge, risked being misused by the jury to undermine the accused's claim of self-defence.[27]

38 Mandie JA found there to be no real risk that the co-offender's plea that he was one of the four men would be used by the jury to establish that the appellant was one of the men. He observed:

As I have said, the defence did not contest that someone entered the premises that night armed with a gun, or what then occurred as alleged. Rather, the appellant's case was that he was not present at the premises and was not the man with the gun. Thus, there was no tangible risk that Murat's plea or pleas of guilty, whereby he accepted his involvement in the events at the night club that evening, would be used by the jury as tending to establish the guilt of the appellant on any of the charges against him. To find the appellant guilty, the jury had to accept the evidence of Murat (and/or Ezedin, the other identification witness) that the appellant was present at the premises and wielded the gun. Murat's guilty plea could not have assisted the jury and there was no real risk that it would have been used by the jury to establish or as tending to establish the appellant's guilt. The failure by defence counsel to take any exception, or to request the direction that the appellant now argues should have been given, must be taken as a recognition that this was so. In addition, the vagueness of the evidence concerning Murat's guilty plea [or pleas] would have made it counter-productive for the appellant to seek a direction drawing attention to it - no doubt another reason for not seeking such a direction. Finally, if such a direction had been sought, there is no reason to think that the judge would not have given it.[28]

39 Finally, the issue was again considered in Andelman v The Queen.[29] The appellant had been convicted of 85 charges of theft. The appellant was accused of stealing money from parking meters from which he was employed to collect money. The practice was for collectors to work in pairs. Three other collectors gave evidence at the appellant's trial. Many of the thefts by the appellant were alleged to have been committed with one of these other collectors. Two of them had previously pleaded guilty and been sentenced for thefts from parking meters. They gave evidence for the prosecution. The prosecution adduced evidence in chief from each that they had pleaded guilty to offences of a like nature to those alleged against the appellant.

40 As in Ristic,[30] the Court in Andelman found the evidence of the pleas of guilty to have been led, primarily, to bolster the collectors' credit by showing that they now had no motive to falsely incriminate the accused.[31] The Court observed that it was 'arguable' that the collectors' pleas of guilty were inadmissible 'in the circumstances of this case'.[32] Having referred at some length to Ristic and Gallagher,[33] the observation in Andelman must surely be understood to mean that such evidence cannot be led in chief from the co-offender when the witness's credit had not yet been impugned. That is made clear enough in Ristic and Gallagher - such evidence is admissible as going to the credit of a co-offender once the witness's credit is put in issue. Cowell[34] proceeded upon the basis that the evidence was properly before the jury and Fountain[35] and Bou-Elias[36] recognise that such evidence is admissible as relevant to the co-offender's credit.

41 In Andelman,[37] the Court found it was necessary for the judge to give directions as to what use, if any, they could make of the admissions. In doing so, the Court referred to Fountain[38] and Cowell[39] and concluded:

There is no basis for distinguishing Fountain in the circumstances of this case. We consider that the jury ought to have been instructed not to use the fact of Kalia and Tatnell's pleas of guilty as tending to establish the guilt of the appellant. As in Fountain, the presence of the appellant at the scene with the co-offenders was never in dispute.[40] Kalia and Tatnell's guilty pleas, in relation to incidents that occurred in the same circumstances as those allegedly committed by the appellant, may well have been viewed as highly significant by the jury in the absence of appropriate direction.[41]

42 Andelman[42] does not provide any support for ground 5. The appellant's foundational proposition, that the bare evidence of Salisbury's plea was inadmissible, cannot be sustained.

43 In our view, once the prosecution had been granted leave to cross-examine Salisbury pursuant to s 38 of the EA, the witness's credit was put in issue and his plea of guilty became admissible. Relevantly, s 38 provides:

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about -

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

44 Section 38(1) lists three matters about which, upon leave being granted, a party may cross-examine the witness they have called. In addition, upon leave being granted, s 38(3) allows cross-examination relevant only to credit.

45 It is clear from Adam v The Queen[43] that much of the cross-examination on these subjects will bear upon the witness's credibility.[44] Heydon JA in R v Le[45] explains why an attack on credibility is inextricably part of the examination on the matters listed in s 38(1):

One purpose of a s 38 examination must be to enable counsel calling the witness to demonstrate that the evidence in chief which led to the s 38 order is false. Another must be to enable counsel to demonstrate that any prior statement inconsistent with it is true. That latter purpose is assisted by s 60, which permits a prior inconsistent statement to be considered as evidence of what is represented, not merely as a matter affecting credibility. But s 60 by itself is not wholly effectual unless the questioner is able to interrogate with a view to demonstrating the truth of the prior inconsistent statement. There would be little point in permitting s 38 examinations otherwise and no point in the existence of s 38(3). The purposes described can be assisted by obtaining concessions from the witness about matters tending to indicate the falsity of the impugned evidence. One of these is the lateness with which the impugned story is advanced. Another is the inherent improbability of the impugned story. These purposes must also be capable of being assisted by the eliciting of evidence tending to show the truthfulness of prior statements inconsistent with the impugned evidence, such as the fact that they were made under conditions conducive to accurate recollection and expression and conducive to sincerity.

In my opinion, on the true construction of s 38, leave may be granted under s 38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s 38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness's evidence on those subjects. In establishing the probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility with a view to shaking the witness's credibility on the s 38(1) subjects.[46]

46 Upon application being made by the prosecutor to cross-examine Salisbury as an unfavourable witness, the trial judge required no persuasion that Salisbury qualified under s 38(a),(b) and (c), stating he had no hesitation in saying that Salisbury was clearly unfavourable. Defence counsel conceded that there was no doubt Salisbury met the criteria of an unfavourable witness. The trial judge granted leave pursuant to s 38(1) of the EA to cross-examine as to asserted facts and to credibility. He also granted leave to cross-examine about matters relevant only to credit under s 38(3) as well as to matters going to his prior inconsistent statements.

47 Application was made that the judge exclude the evidence of Salisbury's police interview and statement pursuant to s 137. Reliance was placed upon Salisbury's claim that he was drug-affected on the night and therefore that his ability to accurately recollect matters was impaired. The trial judge referred to Salisbury's plea and sentence in which it had not been suggested that drug consumption played any significant role in his offending, and stated that he anticipated that that would be the subject of cross-examination. The trial judge, after referring to the matters enumerated in s 192 of the EA, said he would not exclude the evidence pursuant to s 137.

48 We should refer to what had occurred on the fourth day of the trial and before Salisbury was cross-examined. He was brought into court in such a manner that it would have been apparent to the jury that he was in custody. The trial judge said that it was not appropriate to reveal to the jury the particular sentence which Salisbury had received, but foreshadowed that it may be relevant to establish that Salisbury was undergoing a sentence in relation to these matters. Defence counsel upon obtaining instructions made no application and took no issue with the fact that it had been disclosed that Salisbury was in custody.

49 Defence counsel then relied upon s 136, submitting his Honour should limit the use of any prior inconsistent statement to Salisbury's credibility. It was submitted that the jury would place excessive weight on Salisbury's police statement and record of interview and reason that Salisbury was 'essentially trying to assist' the appellant. Defence counsel referred to Director of Public Prosecutions (Vic) v Bourbaud,[47] noting that in that case there were inconsistencies between the witnesses' pleas of guilty and the evidence that they were to give for the prosecution. Having looked at Bourbaud, the trial judge observed that the Crown there wished to rely upon prior assertions by the Crown witnesses arising from their pleas of guilty and their acceptance of particular facts on the plea. The issue was whether their pleas and assertions were inconsistent with the evidence which the Crown now sought to lead from them. The trial judge did not consider that to be the case in the present trial as there was no inconsistency between Salisbury's plea and the evidence the Crown sought to lead. The trial judge then refused the application pursuant to s 136 to limit the use of the evidence.

50 Thus, the trial judge concluded that he presently saw no reason to exclude any of the evidence or limit its use. His Honour reminded counsel that further application could always be made to exclude or limit the use of evidence.

51 Notwithstanding the breadth of the leave that may be granted to cross-examine an unfavourable witness, because the law requires evidence of a co-offender's plea of guilty to be approached with circumspection, ordinarily the Crown should obtain the leave of the trial judge before cross-examining on such an issue. As we have said, it is apparent that it was expected that Salisbury would be cross-examined concerning his plea of guilty and what was said on his plea in mitigation.

52 It accords with principle, and with the authorities we have discussed, that once the credit of the co-offender has been put in issue, whether by defence cross-examination or as a consequence of the witness being declared unfavourable so that the party calling the witness may cross-examine the witness as to credit, the party calling the co-offender may adduce evidence that the witness had been charged and pleaded guilty to the offence before the Court. The co-offender's bare plea of guilty may then be admitted to bolster the credit of the witness by showing that he was not influenced by any motive to try and shift the blame from himself to others - that being the only point which the prosecutor here made in her closing address. Other uses relating to credibility may include rebutting any contention by the defence that pressure had been placed by the investigating police officers upon the witness to make a statement in support of the prosecution case, using the evidence to undermine the concessions made by the witness under cross-examination by the defence or using the evidence to invite the jury to prefer one version of the witness's account.

53 We do not think it is open to doubt that a prosecutor, upon being granted leave to treat a witness as unfavourable and to cross-examine the witness as to matters credit, could seek to use the co-offender's plea during such cross-examination in order to bolster or undermine the credibility of the witness or his testimony in a number of ways, to some of which we have made reference. In the only reference to Salisbury's plea in her closing address, the prosecutor sought to use it in one of those limited ways. The use to which the evidence may be put will not always be so limited. For reasons that we will amplify, where the evidence extends to the summary of facts provided to the court following the plea, that evidence may, in certain circumstances, be treated as a prior representation and so become evidence of the appellant's guilt.

54 We would grant the appellant leave to add ground 5 and grant leave to appeal. For the reasons we have given, as well as those that follow, ground 5 is not made out.

The plea of guilty and summary of agreed facts - Admissible as a representation under the EA constituting a further prior inconsistent statement

55 Thus far, we have dealt only with the appellant's argument at the hearing of the appeal, which focussed upon Salisbury's evidence that he had pleaded guilty to charges arising out of the incident now before the Court. But the evidence of Salisbury went beyond the fact of his plea. He acknowledged the prosecution summary that was read out to the Court, which he accepted was consistent with what he had told the police - that he, Kirkwood and the appellant were the three offenders.

56 The authorities we have discussed were all predicated upon the assumption that evidence of a plea of guilty could not be used to establish the accused's guilt but would only be admissible as going to the witness's credit. For the reasons that follow, where the evidence of what occurs on a plea extends to the summary of facts upon which the plea rests, the facts asserted in the summary may become evidence of the truth.

57 On the oral hearing of the appeal, the appellant confined his argument to the 'bare plea of guilty' and avoided any submission concerning the combined effect of the evidence of the plea and the content of the summary of facts. The Crown only responded to the narrow argument raised by the appellant that the bare plea of guilty could have been admissible, if at all, as bearing upon his credibility and that it could not have been legitimately used as evidence that established the appellant's guilt. Because the argument was unduly confined on the hearing of the appeal, the Court requested the parties to file supplementary submissions addressing the evidentiary effect of all of Salisbury's evidence of what occurred on his plea.

58 We turn then to consider the effect of the entirety of the evidence elicited from Salisbury by the prosecutor in cross-examination as to what occurred when he pleaded guilty.

59 Section 38 of the EA confers upon a party broader rights than those that existed at common law to obtain leave to cross-examine his or her own witness.[48] The leave granted may extend to cross-examination to prove facts contended for by the party conducting the cross-examination.[49] That will often occur by the cross-examiner seeking to establish a prior inconsistent statement in order to attack the credibility of the witness. Once the content of the statements is exposed, the evidence elicited falls within the hearsay rule exception contained in s 60 of the EA.[50] If the content of the prior inconsistent statements is relevant to matters in addition to the witness's credibility, those statements can be admitted as evidence of the truth of their contents.[51]

60 In our view, the EA enables the facts elicited from Salisbury as to the content of the prosecution summary, when considered in conjunction with Salisbury's plea of guilty, to be treated as a representation that the appellant was one of the three offenders. In the recent (presently restricted) decision of this Court in SLS v The Queen,[52] Ashley, Redlich and Priest JJA in their joint reasons stated by way of a general proposition that it can be inferred from a plea of guilty and a prosecution summary of facts that is not disputed that the prisoner has made a number of representations as to the facts asserted in the summary. It may be open to the jury to conclude that the prisoner is admitting that the facts contained in the summary are true. It would be for the trial judge to determine whether the particular inference is open and whether on any ground the evidence should be excluded.[53]

61 The Dictionary to the EA defines a 'prior inconsistent statement' as 'a previous representation that is inconsistent with evidence given by the witness'. 'Representation', in turn, is defined as including representations that are express or implied, in writing or inferred from conduct. In Lee v The Queen,[54] the High Court referred to the Interim Report of the Law Reform Commission which explained that the term 'representation' is used to apply to statements and conduct and was used to encompass all that those statements or that conduct would convey to the observer.

62 The appellant in his supplementary submissions contended that Salisbury's bare plea of guilty constituted an 'admission' within the meaning of the EA. The appellant submitted there were two provisions of the EA which precluded its use as an admission in proof of an asserted fact under s 60 - namely ss 60(3) and 83. In the Dictionary to the EA, 'admission' is defined as follows:

admission means a previous representation that is -

(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding; ...

An admission that is a representation made outside the proceedings and which is offered to prove the truth of the assertion in the previous representation is hearsay evidence. Admissions are an exception to the hearsay rule under the EA.

63 The other relevant sections of the EA are as follows:

60 Exception - evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2)).

Note

Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.

(3) However, this section does not apply in a criminal proceeding to evidence of an admission.

Note

The admission might still be admissible under section 81 as an exception to the hearsay rule if it is 'first-hand' hearsay - see section 82.

1. Hearsay and opinion rules - exception for admissions and related representations
   • (1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
   • (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation -
     • (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.

83 Exclusion of evidence of admissions as against third parties

(1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.

(2) The evidence may be used in respect of the case of a third party if that party consents.

(3) Consent cannot be given in respect of part only of the evidence.

(4) In this section, third party means a party to the proceeding concerned, other than the party who -

• (a) made the admission; or
• (b) adduced the evidence.

64 It is unnecessary to decide a threshold question whether a plea of guilty can constitute a representation 'adverse to the person's interest in the outcome of the proceeding' within the meaning of the definition of 'admission'. Making the doubtful assumption that it could, there are clear reasons why neither s 60(3) nor s 83 precludes the admission into evidence of Salisbury's plea of guilty in the appellant's trial.

65 Section 83 has no application as it is concerned with admissions made by a party to the proceeding in which a third party as defined in s 83(4) seeks to introduce the admission. Odgers, in Uniform Evidence Law in Victoria,[55] described the subject matter of s 83 as 'the use of an admission by a party for or against other parties in legal proceedings' and further that the provision is intended to ensure 'that evidence of an admission by one defendant cannot be used against another defendant in the proceedings unless it is consented to'. The purpose of the provision is to ensure that an admission and the statement of which it forms part should not be admissible against a co-party.[56] That is reflective of the explanation provided by the Australian Law Reform Commission in its discussion paper.[57] It has no application to the plea of a co-offender in some other proceeding and who is not a party in the proceedings.

66 Nor is s 60(3) of the EA enlivened. The definition of admission is to be understood as relating only to the current proceeding. The special character of a representation as an 'admission' applies only to out of court conduct of a party to the current litigation.[58] Salisbury's plea is not an admission made by a person who is a party in the criminal proceeding. Neither s 83 nor s 60(3) is engaged in the present circumstances.

67 The appellant, in a submission which went beyond his written case, submitted that as Salisbury had not been asked further questions as to what he understood or meant by his plea or his acknowledgement that the prosecutor's summary was consistent with his statements to police, no probative evidence could be assigned to anything that occurred on the plea. It was now said that the entirety of the evidence of what occurred on the plea was inadmissible. We reject that contention. Had either party or the judge drawn attention to the course followed on the plea, the jury would have been entitled to conclude from Salisbury's conduct on the plea that he accepted the prosecutor's summary of facts to be true.

68 The course followed on a co-offender's plea in mitigation may permit an inference to be drawn concerning the co-offender's adoption of the summary of facts.[59] The co-offender's legal representative will in most circumstances have settled the terms of the agreed facts as the agent of the co-offender with ostensible authority to do so. The co-offender by his conduct on the plea may be treated as assenting to and adopting the assertions of fact in the summary of facts as well as submissions made on his behalf during the plea. Those cases that have touched upon this issue have treated or presumed the facts agreed to on the plea to be attributable to the prisoner.[60] In the absence of some evidence raising a doubt as to whether the offender accepted the accuracy of the summary of facts, the combination of the offender's plea of guilty together with his willingness to be sentenced on the basis of the summary of facts will ordinarily support an inference that the facts constitute a prior representation.

69 In some instances there may be evidence that assertions contained in the summary of facts are not to be attributed to the co-offender. The co-offender may have disputed parts of the summary of facts put before the sentencing judge or it may be suggested that the summary was part of a plea bargain in which the co-offender agreed to be sentenced on the basis of facts that were not accurate. Bourbaud[61] is an example of a case where the accuracy of the prosecution summary was put in issue. Lasry J granted the Crown leave pursuant to s 38 to establish that certain Crown witnesses had previously pleaded guilty and had been sentenced on the basis of agreed facts which were inconsistent with their testimony at trial. Lasry J in his ruling expressed the tentative view that pursuant to s 136 he would limit the use of the evidence to the credibility of those witnesses as they had foreshadowed in a Basha hearing that they would not accept as accurate the summary of facts placed before their sentencing judge. They had provided explanations for their pleas of guilty which lessened the effect of those pleas.

70 In the circumstance where the accuracy of the facts contained in the summary is disputed, it will be for the trial judge to determine whether the particular inferences are open which the party adducing such evidence seeks to draw.[62] In the absence of material raising doubts as to the accuracy of the summary of facts, the Queensland Court of Appeal in R v Delgado-Guerra considered there to be no proper basis upon which the trial judge should exclude the evidence.[63] In the absence of such evidence it will be open to the jury to infer that the facts asserted in the summary can be attributed to the co-offender.[64]

71 Nothing emerged in the conduct of the trial to indicate that the summary of facts was not accepted by Salisbury at the time of the plea as a correct account of his version of the relevant events. Salisbury in his evidence acknowledged that the summary of facts read out on his plea, including in particular that he, Kirkwood and the appellant were the three offenders, was based upon the information he had provided to investigating police. He testified that he was represented on the plea. He expressed no reservation as to the summary of facts put to him nor was there any reason to expect that he would. He had stated repeatedly in his evidence that his statement to investigating police was more reliable than his further oral evidence, that his statement was the best recollection of what happened and that he believed that what he had told the police was accurate. As Salisbury acknowledged in his evidence, he had at no time suggested prior to the commencement of the appellant's trial that the appellant was not the third offender. There was no evidence to suggest that at the time of the plea he did not accept that the summary of facts read out to the Court was true. The inference could readily have been drawn by the jury, had the trial judge been asked to give a direction as to the use that could be made of that evidence, that it constituted a representation that the appellant was the third offender.

72 During the trial there had been additional references to Salisbury's plea in mitigation in the absence of the jury, including discussion of the sentencing judge's reasons for sentence, which were based upon the facts relied upon by the parties on the plea. It was clear to defence counsel that Salisbury had not taken issue with and had been sentenced on the basis of the prosecutor's summary of facts. It would not have advantaged the appellant to have focussed upon the summary of the facts. To do so would have drawn attention to the fact that Salisbury was prepared to be sentenced on the basis of the prosecutor's summary of facts which he accepted at the time were accurate.

73 The inference usually drawn from the presentation of an undisputed summary of facts read out to the sentencing judge following a plea of guilty was plainly open in the instant case. The combination of Salisbury's plea together with the summary of facts presented to the sentencing judge uncontroversially answered the description of a representation under the EA and would permit the inferences that the representation or representations of fact[65] may be attributed to Salisbury and that he accepted the assertions of fact in the summary of facts to be true. Had the evidentiary use of Salisbury's plea been raised as an issue, or had the judge been asked to give the direction now the subject of complaint, Salisbury's conduct on his plea would have been admissible as going not only to Salisbury's credit but as proof of the appellant's guilt. A direction focussing upon the use that could be made of the course of conduct followed by Salisbury on his plea would have been to the appellant's disadvantage.

74 As we have pointed out, the written cases of both parties and the oral submissions on appeal did not address the evidentiary basis upon which Salisbury's bare plea together with the summary of facts might have been used had the issue arisen at trial. It did not arise for consideration at trial because neither party drew any attention to the combined evidentiary effect of that evidence. Beyond a passing reference by the prosecutor to Salisbury's plea as part of the narrative of his evidence, the Crown did not in closing make such or any other use of the prior representation made by Salisbury on his plea.

75 For these reasons, Salisbury's plea of guilty and summary of facts were admissible as proof of the appellant's guilt. This provides a discrete reason why ground 5 cannot be sustained.

Having regard to the issues and the course of the trial a direction as to the evidentiary use of the plea of guilty and summary of facts was not required

76 The appellant was granted leave to appeal against conviction on the following ground:

(4) A substantial miscarriage of justice was occasioned by the trial judge's failure to direct the jury against the impermissibility of using Salisbury's plea of guilty against the applicant.

77 We turn then to the argument that the absence of a direction not to use Salisbury's plea of guilty as evidence against the appellant has given rise to a substantial miscarriage of justice. There are a number of reasons why that argument cannot be sustained.

(i) No direction was required as to the co-offender's bare plea of guilty

78 First, this case does not fall within circumstances in which the trial judge is bound to instruct the jury that a bare plea of guilty by a co-offender is not to be taken into account in determining the question of the accused's guilt. One circumstance where the failure to give such a direction will give rise to a perceptible risk of a miscarriage of justice is where it is disputed at trial that any offence was committed by anyone. Gallagher[66] is an example. Another circumstance is where the accused, though he admits he is present at the time the offence is committed by others including the co-offender, disputes that he was involved. Cases such as Cowell,[67] Fountain[68] and Andelman[69] are examples. In Andelman, the Court recognised that, like Fountain, the presence of the appellant at the scene of the crimes with the co-offenders at the time they committed crimes in the same circumstances as those alleged against the appellant gave rise to the risk that the jury would have seen the plea as highly significant.[70] In such a circumstance, the need for an instruction as to the permissible and impermissible uses of the co-offender's plea arises because of the risk that the jury may reason that by the accused's admitted presence when the crime is committed, he must, like the other co-offenders, be guilty.

79 The situation is different where the issue is whether the accused was present at the time the crime was committed by all those that were present. This case is indistinguishable from Bou-Elias.[71] In both cases there was no dispute that the crimes charged were committed by a specific number of men and that they were acting in concert. The accused in each case disputed only that he was one of those men or that he was present at the scene of the crime. A co-offender in each case testified under cross-examination pursuant to s 38 that he had pleaded guilty to some of the offences now before the court. No objection was taken to that evidence. The prosecutor in each case referred in closing to the evidence of the co-offender's plea which had emerged in cross-examination as a matter going only to credit. In neither case did the prosecutor suggest that the co-offender's plea of guilty could be used as evidence of the accused's guilt.

80 Where the issue is whether the accused was there at all, the admission of a co-offender's plea of guilty will not by itself ordinarily give rise to the need for such a direction. There was no perceptible risk that the co-offender's bare plea would give rise to reasoning that the appellant was one of the other men who was there.

(ii) Forensic reasons for not requesting a direction as to the bare plea of guilty

81 No application was made to limit the use of the bare plea and no request was made to give the direction now sought. Plainly defence counsel perceived no risk of unfairness to the appellant from its use. That was not surprising. The crimes had been committed. Salisbury had committed them. That is all that his bare plea established. The prosecutor in closing sought only to use the plea of guilty as bearing upon Salisbury's credit in the limited way we have mentioned.

(iii) Forensic reasons for not requesting a direction as to Salisbury's course of conduct on the plea

82 It was said for the first time in the appellant's supplementary submission that the vice lay in the evidence of the plea combined with the summary of facts which showed that Salisbury was prepared to be convicted and sentenced by reference to them, and so the summary of the facts might wrongly have been given greater probative weight than if they appeared only in his police statement. Had the prosecution chosen to do so, it could have invited the jury to treat Salisbury's acknowledgement of the summary of facts as giving additional weight to his police statement and interview for the purpose of enhancing the credibility of Salisbury's original account and as constituting evidence of the truth of those facts. But the prosecution made no such uses of the evidence.

83 Defence counsel was well aware that the evidence of what occurred on Salisbury's plea could be treated as a prior inconsistent statement which could potentially be used as evidence of the truth and as enhancing the credibility of his statement to police. Bourbaud,[72] on which the defence relied, treated the summary of facts on the co-offender's plea as a prior inconsistent statement but limited its use to the witness's credit. But defence counsel had failed to persuade the trial judge to confine Salisbury's prior police statements to his credibility. It was not suggested on the appeal that the representation made by Salisbury on his plea would have been so limited had the trial judge been asked to do so. There was nothing to be gained by defence counsel making that application as the Crown was not seeking to rely upon that evidence as even bearing upon Salisbury's credit.

84 There were obvious forensic reasons why defence counsel chose not to ask the trial judge to do as Lasry J had done in Bourbaud[73] and limit the summary of facts to Salisbury's credit. Counsel understood that the inference was open, as the case of Bourbaud illustrated, that Salisbury had accepted as accurate the prosecutor's summary of facts. The defence had no interest in raising or highlighting either Salisbury's bare plea or his acknowledgement on his plea that the summary of facts was consistent with his police statement that the appellant was the third offender. It would have been counter-productive for the appellant to seek a direction which drew attention to a line of reasoning adverse to the appellant - one the Crown had not adverted to - which at the very least would have enhanced the credibility of Salisbury's account to police.

85 The absence of any request that the judge give such a direction as is now the subject of complaint strongly suggests that it was not merely perceived to be evidence that would work no unfairness to the appellant but that it was rightly recognised that such a direction would work a real disadvantage to the appellant. Even if, contrary to our view, the evidence could only be used for the limited purpose of going to Salisbury's credit, the appellant cannot now be heard to complain that the absence of such a direction was productive of a miscarriage of justice. As Gallagher[74] shows, even in a case where the evidence of a plea by a co-offender serves no legitimate purpose at all and is therefore inadmissible, the absence of a direction to the jury may not result in a miscarriage of justice when regard is had to the manner in which the trial was conducted by the defence.

86 The appellant cannot now assert that there was any unfairness arising from the absence of a direction, where attention to that evidence was studiously avoided during the trial. In Velkoski v The Queen this Court recently said:

Where it is proper to characterise the course followed by the defence as a failure to object to the admission or use of evidence, the applicant would need to demonstrate that there was no tactical advantage to the applicant and that it presented a very obvious and overwhelming prejudice to the applicant before it could be said that a miscarriage of justice had been occasioned.[75]

87 In order to consider whether there has been a substantial miscarriage of justice we assume, contrary to our view, that the evidence was inadmissible or that the trial judge should have confined the use of that evidence to Salisbury's credit and that the appellant's forensic decisions at trial do not preclude him from complaining that a direction as to Salisbury's bare plea of guilty and the prosecution summary of the facts should have been given.

88 Within the overall tenor of the way the trial was conducted, the issue of what occurred on Salisbury's plea assumed no importance. Neither party at any stage of the trial sought to use Salisbury's course of conduct on the plea as bearing upon whether the appellant was one of the offenders. Had the jury's attention been drawn to that evidence by the trial judge and had they been instructed that they could not use the plea or the facts contained in the summary as evidence that the appellant was one of the three offenders, in our opinion the jury would not have entertained doubts that the appellant was one of the three offenders who committed the offences charged.

89 The case against the appellant was very compelling. The appellant's account was inherently implausible. When adjudged against the circumstantial facts not in dispute, his account was unbelievable. It was rendered more so by the initial detailed account given by Salisbury to police and the patent falsity of that part of Salisbury's evidence in which he unconvincingly sought to assist the appellant with contradictory explanations for why he had made a mistake in telling the investigators that the appellant was the third offender. Those explanations were unmistakably false. They were also in material respects irreconcilable with the appellant's highly implausible testimony.

90 Salisbury's evidence in responding to the propositions put by defence counsel differed markedly from his testimony-in-chief. Salisbury's transparent desire to assist the appellant is reflected very clearly in his willingness to agree without qualification to each proposition put to him by the appellant's counsel no matter how much it conflicted with his previous testimony. Despite his repeated statements to the prosecutor that he believed his account to police to be true and that it was his best recollection of events, he readily agreed with the suggestions of defence counsel that his statement to police was a lie, as was the interview. When defence counsel suggested he do so, he immediately retracted his earlier evidence that his statement was reliable. He readily agreed with the suggestion that he lied when he implicated the appellant in his statement.

91 Even more damaging to an accused than an accomplice who inculpates the accused as his co-offender is an accomplice who, with the obvious intention of trying to assist the accused, seeks to distance himself from his original incriminating account which he has maintained was true (and which accords with the circumstantial evidence) by advancing unbelievable exculpatory explanations that cannot withstand any scrutiny.

92 It is desirable to refer to some particular aspects of Salisbury's evidence and the appellant's account. The contradictory explanations Salisbury proffered, to which we have referred, as to why he wrongly nominated the appellant as the third offender were beyond belief. Before giving his contradictory explanations, Salisbury had repeatedly said that he thought at the time that he made his statement to police that it was true and was his best recollection of events. He then gave two explanations for why he had wrongly nominated the appellant as the third offender. He claimed that he had known right from the start that it was not the appellant who was one of the three offenders. He said that he only told police the third offender was the appellant because the police had informed him that the appellant had already admitted his part in the offences. When it was put to him that if that were so, it meant that he had falsely named his friend, the appellant, rather than tell the police that the third offender was someone he had only met on that night, Salisbury withdrew from that explanation. He maintained that at the time he spoke with the police he believed the third offender was the appellant as the third offender was masked and he did not see his face, but that he now realised it was not the appellant because he has mutual friends who told him that it was not the appellant. His claim that he was mistaken as to the identity of the third offender in the victim's house because he was wearing a balaclava mask could not account for any of the circumstantial evidence or other parts of his evidence to the effect that the appellant was involved in the planning over some days of the offences, that the appellant, Kirkwood and he gathered at his house on the day of the offences, that they were the only three people who travelled to the victim's house, that the appellant drove the car, that no one was left in the car when it was parked in the reserve, that the three of them left in the appellant's car after the robbery and that Salisbury had never before trial ever mentioned a fourth person.

93 Salisbury testified that a couple of days previously he had driven with the appellant and Kirkwood to the victim's house. He said he had been talking to other friends about the fact that the victim would have money and deserved to get robbed. Salisbury added that was not something the appellant was told. Salisbury also testified that on the day of the robbery, the four of them, while in the appellant's car, discussed 'doing this guy over', as he was a known drug dealer and they had heard that he had money there. The appellant in evidence denied that he had driven passed the victim's house on a previous occasion with Salisbury or that he was privy to any discussion about robbing the victim. The appellant denied that he heard any conversation in his car on the day of the robbery that suggested they were intending to rob the victim. The appellant said that at no time was he aware of the large blue bag or firearm or any other item that the offenders used in the robbery and which was found in his car. He said he did not see those items at any time.

94 Salisbury testified that when the men gathered at his house before the robbery, he and the appellant took out their wallets and left them at his home. The appellant's wallet was later found at Salisbury's home by investigating police. Adjacent to the wallet was a pair of gloves similar to those found on the appellant when he was apprehended by the police. The appellant agreed that his wallet was found at Salisbury's home next to a plastic bag containing Kirkwood's medication and a pair of white latex gloves which were similar to and could be the same type as those he had in his pocket. He claimed that he had put his wallet and keys down on the table at Salisbury's home and when they left grabbed his keys but forgot the wallet. He agreed that when he realised that he had left his wallet he did not call Salisbury or go to his house to wait for him and did not go to the reserve but drove around the general area where he had dropped them. He agreed that it was over a kilometre from the reserve to the victim's home.

95 When asked to empty his pockets by police after being apprehended, the appellant did not take the gloves out of his pockets. He said he did not realise the gloves were there. The appellant's explanation at trial for the gloves in his pockets was that he uses them to change his daughter's nappies and to wash dishes. In cross-examination he said he had one glove in his back pocket and one in the front. He assumed that the gloves had been separated because he had put one glove on to change his daughter and she probably had a wee nappy and he took the glove off and stuck it in his back pocket.

96 Although the appellant had initially parked in the reserve 1.1 kilometres from the victim's house, Salisbury said that as they were returning to the appellant's car after the robbery the appellant drove past and the fourth man, Aje, was already in the car. Kirkwood and Salisbury jumped in. The appellant's account was that he waited at the reserve for a while after dropping the men off and then got annoyed and impatient and drove home. About 15 minutes later he realised that he had left his wallet at Salisbury's place which he needed for work the following morning. He said he went back to see if they had come back to the street and to collect the marijuana they were going to give him for driving them there. Shortly after he arrived he heard a whistle, pulled over and they all jumped into the car. Kirkwood was in the front and Aje and Salisbury were in the back. The appellant denied Salisbury's account that when the appellant drove past Aje was already in the back seat.

97 It was the Crown case that from the time the police commenced to follow the appellant's vehicle after the robbery there was no fourth man in the car. No fourth person was observed to have exited the car. Salisbury had said in chief that when the police put their lights on the appellant slowed down and stopped the car. Kirkwood, who had been in the front seat, opened the door and jumped out, and the other man, who was in the back on the driver's side, climbed over the top of Salisbury and 'kind of rolled out of the window in a ball, sort of across me'. The uncontested evidence of the police, with which Salisbury had agreed, was that the rear window was closed when the vehicle was stopped by the police. He said he must have closed the window after the other man rolled out of it. By contrast the appellant gave this account. He said that the fourth man, who he called Aje, said there was a police car behind them and that he did not want the police to catch up. The appellant asked why he was concerned about the police presence. One of the men in the car said that there was an argument in the house and there had been a fight with the victim. The appellant protested about them putting him in that position. He refused to speed up and pulled over to the side of the road. When he stopped, Kirkwood opened the front door to get out and Aje got out the back door. The appellant said that he wanted to stop them from running away from the police car so he grabbed Kirkwood before Kirkwood had exited the car and pulled him back by the arm, and as he did so he accelerated forcing the front door shut with Kirkwood still in the car. The appellant gave no satisfactory explanation as to why he would not have remained stationary when he first stopped, if he was not intent on trying to avoid the police. When the police car put its lights on he again pulled over and Kirkwood got out and ran away. He disagreed with Salisbury's account that they both left the car when the police lights went on and that Aje rolled into a ball out the window. The appellant's account could not be reconciled with the observations of the police and was inconsistent with Salisbury's account of the car's movements.

98 The evidence of the investigators was that when the appellant and Salisbury were apprehended they were both sweating profusely. The appellant agreed that though it was a winter's night in June there were beads of sweat running down his face when the police intercepted him. He denied that the reason why he was sweating was because he had run from the victim's premises to the reserve. The police also testified that both the appellant and Salisbury had their jeans tucked into their socks. The appellant denied that he had his jeans tucked into his socks so that forensic material like hairs would not be left at the victim's house.

99 The evidence at trial, some of which we have referred to, required the

conclusion that the appellant was guilty of the offences charged. Even if a direction had been given limiting the use that could be made of the evidence of Salisbury's plea of guilty, the appellant's conviction was inevitable. The absence of such a direction did not give rise to a substantial miscarriage of justice.

100 For these reasons, we would dismiss the appeal.

101 On 16 March 2012, the appellant was found guilty by a jury in the County Court of offences which occurred on 13 June 2010, including aggravated burglary, armed robbery, false imprisonment, recklessly causing injury[76] and possessing an unregistered general category handgun. The trial judge sentenced him on 28 May 2012 to a total effective sentence of imprisonment of eight years and two months, upon which he fixed a non-parole period of six years.

102 Pursuant to leave granted on 15 May 2013, the appellant brought an appeal on a single ground which alleged that a substantial miscarriage of justice was occasioned 'by the trial judge's failure to direct the jury against the impermissibility of using Salisbury's plea of guilty against the appellant'.[77] During the hearing of the appeal on 5 September 2013, the appellant sought leave to add a further ground that

a substantial miscarriage of justice was occasioned by the plea of guilty of Salisbury being admitted into evidence. In my opinion, the appeal should be allowed, the convictions and sentences set aside, and a new trial ordered. My reasons follow.

103 On Sunday 13 June 2010, a man, Robert Wilson, was alone at his home in Tootgarook. At about 9:00pm he answered a knock at the door and was confronted by three men. Two of the men wore balaclavas and one a beanie. Two carried baseball bats and one a sawn-off gun. The man armed with the gun pushed his fingers into Wilson's mouth and throat apparently to prevent him from crying out. It was the prosecution case that Brendan Kirkwood had the gun, and that the other two men were Domenic Salisbury and the appellant. The prosecution case was also that the three had agreed in the days leading up to the offending to go to Wilson's house, and together rob him of money and drugs.

104 Wilson was gagged. Duct tape was wrapped around his mouth and head. A safe was located in the lounge room and Wilson was commanded to open it. He did as he was told. Cannabis and prescription drugs were removed, and the three took Wilson's wallet, some cash, a jar of two dollar coins, a mobile telephone, a laptop computer and other items. The unfortunate Wilson then had his hands and feet tied with zip cable ties and his eyes covered with duct tape. In the 20 minutes or so that the three men were in the house, Wilson was struck to the body a number of times, causing pain and bruising. When leaving, the three men threatened Wilson. He was told that if he went to the police, they would return and finish him off. The men then drove off in a gold Volvo belonging to the appellant.

105 Senior Constable Wearne noticed the car shortly afterward because it was driving erratically. He sought to intercept it, but lost sight of it for a short time. When he regained sight of it, Wearne operated the lights and siren of his police vehicle and the car pulled over. Kirkwood fled from the car on foot. Salisbury and the appellant remained in the vehicle. Senior Constable Wearne was unable to say, however, how many had been in the car when he first saw it.

106 When searched at the scene, the appellant was found to have latex gloves in his jeans. Salisbury was found to have a black cable tie, beanie and cloth gloves. A bolt-action .22 rifle was found inside a blue bag inside the car. Various prescription medicines in Mr Wilson's name, as well as various other items belonging to him, were also found by police. Other items found included Wilson's driver's licence, a mobile telephone, a jar containing gold coins and gaffer tape. Salisbury and the appellant were arrested. Wilson was later found, still restrained, at his home.

107 Salisbury later pleaded guilty to several offences. He was sentenced on the basis that he had acted in concert with Kirkwood and the appellant. As I have said, however, the appellant pleaded not guilty and was convicted. He too was sentenced on the basis that had acted in concert.

108 I will turn shortly to Salisbury's evidence at trial which, of course, preceded the appellant's case. Before I do so, however, it is convenient to take notice of the appellant's evidence given in his defence.

109 The appellant gave evidence that on the relevant day, Salisbury telephoned him and asked the appellant to drive him and some friends to a particular address. Salisbury told the appellant that his reason for going to that address was to obtain marijuana. The appellant claimed in his evidence that he had gone to Salisbury's home as had been requested. When he went inside Salisbury's residence, he met up with Salisbury, Kirkwood and third man whom he knew as 'Aje'. The four of them left Salisbury's premises together. According to the appellant, he somehow left his wallet behind.

110 The appellant then drove the three other men in his car to Wilson's address in Tootgarook. He said that he waited outside while the other three went inside. The appellant waited for a time, until he got annoyed and drove home.

111 When he arrived home, the appellant spoke briefly to his partner. He realised that he had unintentionally left his wallet at Salisbury's premises. The appellant thus needed to contact Salisbury so as to get his wallet back. It was for that reason, he claimed, that he drove back to Wilson's residence from his own.

112 The appellant said that when he arrived, he saw the three men outside in the street. He pulled up beside them, they got in to his car and he drove off.

113 He became aware shortly afterwards of a police car that was attempting to intercept them, so he pulled over to the side of the road. As he was doing so, two of the passengers got out of the car. One was Kirkwood and the other Aje.

114 The appellant gave evidence that the latex gloves found in his possession were for use at home. He denied having entered Wilson's premises, and denied any knowledge of, or involvement in, the offences.

115 Salisbury was a key prosecution witness. In his record of interview, and in a statement to police, he had implicated the appellant in the commission of the offences on Wilson. When called to give evidence at the trial, however, he gave a very different version of events.

116 The record of interview and statement had come about as follows. Salisbury was arrested on 13 June 2010. Police commenced a recorded interview with him at 11:38 pm, which was then suspended at 11:39 pm so that he could seek legal advice. After another few inconsequential questions between 6:13am and 6:14am, the main body of the recorded interview took place on 14 June 2010 between 9:50am and 10:22am. During the course of the interview, Salisbury agreed to make a written statement confirming what he had told police in the recorded interview. A typed statement was then taken from him by another officer, and was signed and acknowledged by him at 11:57am.

117 In his evidence in chief, Salisbury said that on the relevant day he, Kirkwood and another, Aje, had met up at the appellant's house. Kirkwood raised the prospect of robbing Wilson after they had all entered the appellant's car. The four men had then driven together to Wilson's residence. Salisbury said that he told the appellant that their reason for going there was to purchase drugs. Upon arrival, Salisbury, Kirkwood and Aje got out of the appellant's car, and entered Wilson's house. They then committed the offences on Wilson.

118 Salisbury gave evidence that after they had finished with Wilson, they left the house expecting to find the appellant waiting in the car, but he was gone. A few moments later, the appellant drove up towards them with Aje already in his car. Salisbury speculated that the appellant must have picked Aje up further down the road. He said that both he and Kirkwood got into the car. The appellant asked him where they had been. Before there was any further discussion, however, the appellant began to pull over. Salisbury said that while the car was still moving, Kirkwood and Aje both jumped out. When questioned about it, Salisbury said that Aje had 'rolled out the window in a ball'.

119 Thus the nett effect of Salisbury's evidence was that, contrary to the thrust of what he had told the police, the appellant had not entered Wilson's home in the course of an aggravated burglary, and was not involved in any armed robbery, false imprisonment or assault on him.

120 In light of Salisbury's marked departure from his earlier version of events, the prosecutor applied under s 38 of the Evidence Act 2008 to cross-examine him as to what he had previously said in his record of interview and statement to the police. It was also foreshadowed that the prosecutor would seek to tender Salisbury's 'prior statements' as proof of their truth, pursuant to s 60 of the Act.

121 The trial judge indicated that any cross-examination along those lines should not go to the question of Mr Salisbury's motive to lie on behalf of the appellant, but he otherwise granted leave to cross-examine without restriction (including as to matters going solely to credibility).

122 Salisbury was cross-examined by the prosecutor concerning the discrepancy between the evidence he had given in the trial and his previous account of events, as set out in his record of interview and his written statement. Of particular importance to the present ground of appeal, the prosecutor put to Salisbury that when he pleaded guilty to the various charges concerning Wilson, he had acknowledged that there were only three offenders involved - himself, Kirkwood and the appellant. In particular, he agreed - or, at least, did not dispute - that the prosecution summary that was read out at his plea hearing asserted that the three offenders were himself, Kirkwood and the appellant. Salisbury accepted (as he had to) that there was that discrepancy between the two accounts.

123 It is worthwhile setting out a crucial passage of Salisbury's cross-examination by the prosecutor:[78]

Mr Salisbury, do you agree that what's in your statement is the most accurate recollection of what happened that night on 13 June?---Is the most accurate?

Yes?---I don't - I think - I don't think it's that accurate because I was - well, I mean, I've taken a lot of drugs that night, so, I mean, is accurate as - as someone as wasted as I was, it's - it's gunna be.

Is it more accurate than the evidence that you gave this morning?---Yeah, yeah, I guess (indistinct)

Mr Salisbury, you pleaded guilty to charges arising out of this incident on 7 December 2010. Is that correct?---Yes.

You were sentenced in relation to those charges on 10 December. Do you recall that the prosecution summary that was read out to the court on that occasion was consistent with what you told the police, in that it said the three offenders were yourself, Brendan Kirkwood and Michael Power?---No, about the statement, yeah, yeah, mm.

I'm talking about the prosecution summary that was read out. Do you agree that that's what the prosecution summary said?---During my trial?

On your court date?---Yeah, um, yeah, yeah. I, um, I guess, yeah, yeah. I don't remember, but, yeah, I---

You don't dispute that?---No, I don't dispute it, no.

Mr Salisbury, at no stage between your arrest on 13 June 2010 and this trial starting last week, with the preliminary hearing, have you told police or the court that your statement was incorrect in any way, have you?---No, no, no, no.

124 From this passage it seems that the prosecutor elicited, first, that Salisbury had on 7 December 2010 pleaded guilty to charges arising out of the relevant incident; secondly, that at the time he pleaded guilty, a prosecution summary was read out (or, at least, Salisbury did not dispute that it was); and, thirdly, the prosecution summary that was read out was consistent with what he had told the police (or, at least, that is one interpretation of what his answers conveyed).

125 In extensive cross-examination thereafter, the prosecutor took Salisbury to the contents of the record of interview and his statement - frequently jumping back and forth between them[79] - to demonstrate discrepancies with his evidence.

126 The judge directed the jury on the use of Salisbury's record of interview with, and statement to, the police. He instructed the jury that they might be used 'as evidence in the case' and as bearing upon Salisbury's credibility:

So, one of the things Mr Salisbury said in the evidence he gave in court was that Mr Power did not enter the Wilson house. However, prosecution allege that Mr Salisbury had previously given a different version of events in his record of interview, and particularly in his statement, in which he gave a detailed description of Mr Power's participation in the offences, including entering the house and being one of the people who did so. So, if you accept that Mr Salisbury made these statements, and by statement I do not mean just the statement, but also the statements he made in answer in the interview, there are two ways in which you can use that fact.

First, you can use the contents of those statements as evidence in the case. For example, you could use Mr Salisbury's statement that Michael Power entered the house and participated in the armed robbery and the aggravated burglary as evidence that he committed those offences. You can use it as evidence. Secondly, if you find that Mr Salisbury's statement is inconsistent with the account that he gave in court, you may use the statement when you assess his credibility and reliability.

You may find that the fact that Mr Salisbury had previously given an inconsistent account means that the evidence he gave in court is less likely to be truthful or accurate. You may therefore be less willing to accept his evidence in court and be more ready to accept the contents of the statements. It is for you to determine whether or not to draw this conclusion from any of the inconsistencies that you find.

127 Although the trial judge followed the Charge Book,[80] in my opinion (and with due respect), a lay jury may well have found the directions contained in the first three sentences of the second paragraph to be somewhat obscure. It is hardly enlightening to tell the jury that the contents of the record of interview and statement might be used 'as evidence' or 'as evidence in the case'. Notwithstanding this observation, however, I proceed on the basis that the jury would have understood the directions to mean that they could use Salisbury's previous statement as evidence of the fact that the appellant had participated in the offending.

128 Significantly, however, the judge gave no directions to the jury as to the use (or non-misuse) of Salisbury's plea of guilty or as to the prosecution summary of facts that was said to have been read out at the time of the plea.

129 During her final address to the jury, the prosecutor twice referred to the fact that Salisbury had pleaded guilty to charges arising out of the relevant incident, and had been sentenced for his involvement. She asserted - without any apparent evidentiary foundation - that Salisbury had received no discount on his sentence for giving evidence at the appellant's trial. Neither she nor defence counsel, however, addressed the jury as to the use - or non-misuse - of the evidence of Salisbury's guilty plea.

130 Salisbury's evidence was summarised by the trial judge. The issue of his having pleaded guilty was, however, ignored. Significantly, the jury were not warned about using the fact of the plea of guilty in any analysis of the evidence concerning the existence of a prior agreement to which the appellant was a party.

131 No exception was taken. But the appellant nonetheless submitted that it was necessary in the circumstances to direct the jury as to both the permissible and impermissible uses of that evidence. In particular, counsel for the appellant submitted that the jury ought to have been told that the fact that Salisbury had pleaded guilty to an offence involving the appellant was not, of itself, capable of being used to prove that the appellant was party to that offence. It is submitted that such a direction was required irrespective of whether it had been sought by defence counsel at trial.

132 The respondent argued that it was not disputed by the appellant that the offences against Wilson had occurred, the only issue being whether he was one of the offenders. There was no rational way, so it was submitted, that the jury could have reasoned from the evidence of Salisbury's guilty plea that the appellant was one of the offenders. There was no practical difference between Salisbury's evidence of having committing the aggravated burglary and associated offences, and the evidence of him having pleaded guilty to relevant charges. Counsel for the respondent submitted that the admission of guilt by Salisbury did not make one of his versions more credible or reliable. It was not one of the factors relied upon by the prosecutor to argue that the version given to police should be preferred. Despite the prosecutor having referred to Salisbury's guilty plea, she did not put any argument to the jury that they could use that plea by itself to reason that the appellant was one of the offenders. The furthest the prosecutor went, it was submitted, was to point out Salisbury had not received a discount on his sentence. Attention was drawn to the fact that defence counsel did not refer to Salisbury's plea, nor seek the directions now claimed to have been necessary. Her failure to seek such a direction reflects her view that there was no appreciable need for it.

133 During the hearing of the appeal, leave was given to the parties to provide supplementary written submissions. Those submissions having been received, by a memorandum of 12 December 2013 the Court sought further submissions again from the parties to address issues that had not been fully explored during the oral hearing or in the supplementary written submissions.

134 The memorandum pointed out that the written case of both parties, the oral submissions on the appeal and the supplementary written submissions furnished by the parties following the conclusion of the oral hearing all proceeded upon the assumption that the plea of guilty by Salisbury (if admissible) could go only to his credit. The Court sought further submissions as to whether, having regard to the evidence led from Salisbury as to the circumstances in which he pleaded guilty, the evidence of Salisbury's guilty plea was evidence that could be used by the jury in determining the appellant's guilt (rather than going simply to Salisbury's credit).

135 During the course of the trial, the memorandum pointed out, the prosecutor put into evidence the fact that Salisbury had pleaded guilty to charges arising out of the incident the subject of the appellant's indictment, and that at the time Salisbury pleaded guilty the prosecutor's summary of the facts was read to the Court (that summary being, on the prosecution case, in accordance with what Salisbury had told the police in his record of interview). In the supplementary written submission the appellant identified a number of propositions contained within Salisbury's record of interview that were inconsistent with the evidence that Salisbury gave at the appellant's trial. The jury had been instructed that they could treat the content of Salisbury's record of interview as a prior inconsistent statement and could use it as that the appellant had committed the offence charged.

136 Of particular significance, the memorandum required the parties to provide further submissions addressing the question whether Salisbury's plea of guilty in the context of the accompanying prosecutor's summary, and Salisbury's acknowledgement that it was in accordance with his record of interview and statement, constituted a 'prior representation' which was to be inferred from Salisbury's conduct. The parties were also asked to consider whether Salisbury's plea of guilty is to be viewed as an admission (see s 60(3) of the Evidence Act 2008) and whether it is firsthand hearsay for the purpose of s 81 of the Act. (See also ss 82 and 83.) If it is to be treated as a 'prior representation' or part thereof, is it then evidence that the jury may use in determining the appellant's guilt? The parties were also asked to address whether the trial judge failed to consider ss 135, 136 and 192 of the Act, and any effect such failure had on the integrity of the trial.

137 Finally, the parties were asked to consider whether, if the plea of guilty and associated evidence from the record of interview was admissible as other than a prior inconsistent statement, did any substantial miscarriage of justice flow from the judge's failure to give directions as to the use of the evidence?

138 In response to the Court's memorandum, the appellant submitted that 'there was insufficient basis to infer on the balance of probabilities that Salisbury's plea was a representation, even implied or unintended, as to anything more than his own guilt, this being a matter that was not relevant to any fact in issue in the trial of the appellant'.

139 Developing that submission, the appellant argued that whether a plea of guilty in the context of a prosecution summary amounts to a representation as to the truth of the matters described in the prosecution summary is a question of fact to be determined in all the circumstances (including the subjective intention of the maker). The prosecution summary may reflect what the accused is prepared to accept is provable against him or her (or not able to be disproved) rather than what he believes to be the true. It was submitted that he or she may plead guilty on the basis of a prosecution summary he or she positively believes to be wrong. A plea of guilty 'is not factually or legally a positive assertion of the accuracy of the prosecution summary'.

140 By his plea of guilty in the context of a prosecution summary, so it was submitted, Salisbury conceded that the elements of each offence were proved against him and that he should be sentenced on the basis of the prosecution summary. But to establish that, by his plea, Salisbury had made a 'representation' relevant to a fact in issue in the appellant's trial, it was necessary to ascertain whether the plea amounted to a representation of fact, not of law.

141 The appellant submitted that little can be gleaned from the appellant's trial about the circumstances of the entry of Salisbury's plea. Salisbury was questioned on a voir dire but no questions were directed to the circumstances of the entry of his plea. Before the jury, Salisbury confirmed that he pleaded guilty to 'charges arising out of this incident' and was sentenced. He did not dispute that a prosecution summary, and prior to the appellant's trial he had not told police that his statement was incorrect. No explanation was offered.

142 It was submitted that no other questions were directed to the circumstances of the entry of Salisbury's plea. Thus he was not asked (whether through counsel or otherwise), whether he had indicated that the prosecution summary was accepted. It was contended that to establish a representation as to the truth of the prosecution summary arising from the plea, it was not sufficient for the prosecutor to take Salisbury to the substance of his statement and simply rely on his non-denial that the Crown summary was consistent with it.

143 Alternatively, it was submitted that if the Court was of the view that Salisbury's plea amounted to a representation as to the appellant's involvement in the offending then it would still be inadmissible as an admission against a third party.

144 Dealing with whether Salisbury's plea was an 'admission', the appellant submitted that at the time of making the previous representation (the plea), Salisbury was a party to a proceeding (his own prosecution) and the plea of guilty in the context of the prosecution summary was adverse to his interest in the outcome of that proceeding (in that it lead to his conviction). It was submitted that on a plain reading of the Evidence Act, a representation by a party adverse to his own interests in a proceeding is capable of being an admission in respect of another party in a separate proceeding.

145 The appellant further submitted that the exception to the hearsay rule for evidence relevant for a non-hearsay purpose does not apply to evidence of admissions, and that the admissibility of Salisbury's plea would be governed by part 3.4 of the Evidence Act. It was argued that on the appellant's trial, Salisbury's plea would be an admission in respect of a third party such that the hearsay rule would apply and the evidence of the representation could not be used against the appellant without his consent.

146 Thus, the appellant submitted, the prosecution 'would have been prevented by the hearsay rule from presenting the plea of guilty in the context of the Crown summary as an intentional representation that the appellant acted in concert with Salisbury'. The appellant did not consent to the use of the admission. This would prevent a non-hearsay use of the representation.

147 It was submitted that the cross-examination of Salisbury as an unfavourable witness was not embarked upon with a view to eliciting evidence of the plea in the context of the prosecution summary. The application was instead made in respect of the statement and record of interview. Counsel for the appellant sought advance rulings under s 136 and s 137 in respect of the anticipated evidence of the statement and record of interview. The trial judge declined to limit the use of any anticipated evidence or to exclude it, and also adverted to s 192 in determining to grant leave to cross-examine as to both truth and credit. It is clear, so the appellant submitted, that at the time of the application, the trial judge did not consider that Salisbury's plea itself was capable of amounting to a prior inconsistent statement.

148 The appellant submitted that the trial judge erred in not limiting the grant of leave to cross-examine Salisbury under s 38 to exclude cross-examination as to the plea of guilty. It was further submitted that once the evidence as to the plea of guilty emerged, the trial judge erred either in not excluding it or limiting its use to prevent reliance upon it as evidence of the truth of the matters contained in the prosecution summary.

149 It was argued that the vice of the evidence of the plea of guilty was that the jury wrongly might accord undue weight to the facts asserted in the prosecution summary 'because Salisbury was prepared to be convicted and sentenced by reference to them'. Hence the evidence was misleading and confusing and unfairly prejudicial to the appellant and should have been excluded under s 135 (or at least limited to credit purposes under s 136).

150 With respect to the lack of judicial directions, the appellant submitted that the judge was in error in not directing the jury that the evidence of the plea of guilty could not be used as evidence of the truth of the appellant's involvement in the offending. It was argued that the need for such a direction was increased by the prosecutor's reliance on the fact of the plea of guilty in her closing address. It was irrelevant that the trial judge did not give a direction as to prior inconsistent statements with respect to the plea and accompanying summary. The jury simply were left without direction as to what they could make of the plea.

151 There had thus been a substantial miscarriage of justice.

152 The respondent submitted that there is no basis upon which, on the facts of this case, it could be reasoned that Salisbury's plea of guilty taken alone, or in conjunction with his acceptance at his own plea of the appellant's involvement, amounted to an admission by the appellant.

153 For the purposes of ss 60(3), 81 and 82 of the Evidence Act 2008, an admission is one made by the accused. It was contended that Salisbury was not a party to the proceeding, nor could he be become one, since his offending had been dealt with prior to his giving evidence. Salisbury's admission of his own guilt was not evidence of an admission by the accused in the appellant's trial.

154 The respondent submitted that, taken in isolation, Salisbury's plea of guilty was not capable of use as proof of the appellant's involvement in the same offending. It was an admission only as to Salisbury's own participation in the offending.

155 It was submitted, however, that there was no need for the prosecutor to rely on what had occurred on Salisbury's plea as proof of the issue that the appellant was one of the offenders, since the prosecution had available 'powerful evidence' of what Salisbury had told the police. The implied allegation against the appellant on Salisbury's plea was not independent of the representations Salisbury earlier made to the police of the same fact. At best it was mere repetition of the fact already asserted to the police, that the appellant was one of the offenders.

156 The respondent further submitted that the jury were clearly told what evidence they could rely upon as to the truth of the allegation, that being the content of the police statement and the police interview. In closing, the prosecutor only relied on the police statement and the record of interview for the truth of their content. The trial judge directed the jury about the use of those 'statements' (as he described the police statement and the record of interview) as evidence in the case. When directing the jury about the use of prior statements as evidence those statements were clearly identified as the police statement and interview. It was argued that, read as a whole, there is no reasonable likelihood that the jury could have thought the direction as to the use of prior statements as evidence of the facts asserted applied to the events on Salisbury's plea.

157 It was submitted that there was no need for the trial judge to consider ss 136, 137 or 192 of the Evidence Act 2008. The evidence of what occurred at Salisbury's plea did not carry with it any unfair prejudice.

158 Further, there was no substantial miscarriage of justice, it was submitted, because there was no risk of the jury misusing the evidence about what occurred on Salisbury's plea. Once the jury accepted that the identification of the appellant by Salisbury in his police statement and interview was truthful, conviction was inevitable.

159 Before turning to the pertinent provisions of the Evidence Act 2008, it is instructive to review the manner in which similar cases have in the past been resolved by recourse to common law principles.

160 In Cowell,[81] two men, Burn and Cowell, were charged with indecent assault. At Cowell's trial, the prosecutor opened that Burn had been charged and had pleaded guilty. Although the defence did not object at that point, at the close of the defence evidence an application was made for the discharge the jury, which was refused. In allowing the appeal, Street CJ (with whom Lee and Wood JJ agreed) referred to Lord Goddard's statement in Moore[82] that the fact that a co-defendant has pleaded guilty 'is no evidence against his co-prisoner ... the accepted principle being that a man's confession is evidence only against himself and not against his accomplices'. Street CJ observed that the principle enunciated by Lord Goddard was one that had always been recognised in NSW criminal courts and said:[83]

In the present case, it is not easy to see how the Crown justified telling the jury that Burn had pleaded guilty. ...

Plainly enough, it was a highly significant and, as I would regard it, potentially prejudicial piece of information to put before the jury albeit that upon close analysis it may be that Burn's own criminal activity that night would not have necessarily involved any ultimate prejudice to the appellant in the eyes of the jury.

It would, however, have been necessary to ensure that the jury fully understood that Burn's plea of guilty should not be regarded by them as creating an aura of criminality surrounding the events of that night within which the question of the appellant's guilt fell for determination. Even accepting, as I must say I hesitate to accept, that it could be regarded as permissible to have opened it, plainly enough it would have been desirable for the jury to be very specifically informed of the limited use - or one might say non-use - that the jury was entitled to make of this piece of information.

161 It is to be noted that although he thought it to be desirable that the jury be directed as to the permissible use (and non-misuse) of the evidence, Street CJ stopped short of saying that the disclosure of the fact of a co-offender's plea of guilty, unaccompanied by the 'desirable' directions, led inevitably to the view that justice had miscarried. Indeed, in Cowell there were other factors which contributed top the conviction being quashed.

162 Burnett[84] was a case where, on a trial for multiple charges of fraud, the pleas of guilty of a co-offender - and the amounts embraced by the charges to which she entered her guilty pleas - were led against Burnett. On appeal to the WA Court of Criminal Appeal it was contended, first, that the admission into evidence of the pleas of guilty of the co-offender 'contaminated the whole trial so as to make it entirely unfair'; and, secondly, that there being no other evidence of the actual amounts received and obtained by the applicant, the resort to the facts admitted by the pleas of guilty of the co-accused necessarily resulted in an unfair conviction. The Court (Nicholas, Owen and White JJ) identified the central issue as being whether the use of the co-offender's pleas of guilty in those circumstances denied the applicant a fair trial. In quashing the convictions, the Court made it plain that proof of the conviction of another would not be relevant or admissible if the sole purpose for which admission was sought was for the plea of guilty of one co-offender to be used to establish the guilt of another co-offender. Moreover, the Court made plain that in a case where evidence of a plea of guilty by a co-offender is admitted the jury must be very specifically directed as to the limited use that they are entitled to make of that information.[85] Since the co-offender's pleas were admitted to prove facts, they were wrongly admitted, and the fairness of the trial had been compromised.[86]

163 In Fountain and Tootell[87] a mother and son were charged with recklessly causing serious injury, false imprisonment and attempting to pervert the course of justice. The prosecution led evidence of the pleas of guilty to similar charges of two co-offenders, Luckman and Ryan, both of whom gave evidence at the applicants' trial. In the judge's charge to the jury no mention was made of the fact that the co-offenders' guilty pleas could not be used against the applicants. The applicants argued that the trial judge had erred in failing to give any instructions to the jury as to the use they could make of the evidence that those two co-offenders had pleaded guilty. Charles JA (with whom Buchanan and Chernov JJA agreed) determined that there had been a miscarriage of justice in circumstances where the prosecutor had relied upon the co-offenders' pleas of guilty as tending to establish the guilt of the applicants, and the judge had not given the jury an appropriate warning. He said:[88]

There was, I think, plainly a possibility that the jury would make improper use of the evidence that Luckman and Ryan had pleaded guilty to the same offences. The prosecutor's submission to the jury certainly did not make it clear that the pleas of guilty by Luckman and Ryan could only be used to rebut any contention by the defence that pressure had been placed by the investigating police officers upon these witnesses to make a statement in support of the prosecution case or to undermine the concessions made by the witnesses under cross-examination in favour of the case of self-defence made by the applicants. On the contrary it seems to me that the prosecutor's words invited the jury to treat the pleas of guilty as evidence tending to establish the guilt of the applicants. On this basis the evidence clearly had the potential to be prejudicial to the applicants who were being alleged to be co-offenders of the persons who had pleaded guilty. In these circumstances the judge should have warned the jury appropriately, as stated in Cowell and Burnett.

164 Fountain and Tootell was followed in Andelman.[89] In that case the appellant was convicted of a large number of thefts from parking meters. The prosecutor elicited before the jury in the appellant's trial that two co-workers, Kalia and Tatnell, who were involved in the thefts with the appellant and who were witnesses for the prosecution, had pleaded guilty to like offences to those he faced. It was held that evidence of the pleas of guilty by Kalia and Tatnell having been adduced by the prosecution, it was necessary for the trial judge to direct the jury as to what use, if any, they could make of that fact. That was so even though the appellant's counsel had not sought any such direction.

165 Considerable reliance was placed by the respondent's counsel on the hearing of this appeal upon the decision of this Court in Bou-Elias.[90] In that case, four men had entered a nightclub and begun threatening and abusing other patrons. One of them, Murat, assaulted a patron, Bekir. Murat was restrained by another patron, Karakas, while the other three men became involved in a fracas with other patrons. One of them struck Karakas with billiard balls. This man had produced a sawn-off shotgun on entry into the club and made threats to kill Bekir and another patron, Ezedin, and he had terrorised the patrons and the owners of the premises. Following the production of the gun and the assaults, the four men left the premises. In a later statement and record of interview, Murat identified the appellant as the person with the gun. He was further so identified by, Ezedin, who picked his photograph from a photo board prepared by police. The prosecution case was that the appellant was the man with the gun. Identity was the issue at trial. The defence case was that the appellant was not the man with the gun. He was not present. However, the defence did not contest the evidence that someone entered the premises that night armed with a firearm, or any of the other facts alleged.

166 The appellant was tried with a number of alleged co-offenders, but Murat, having earlier pleaded guilty to offences related to events at the nightclub, gave evidence for the prosecution. In his initial evidence, Murat denied that the appellant was present at the nightclub and denied seeing any gun. Similarly to the present case, the prosecutor was granted leave to cross-examine Murat pursuant to s 38(1) of the Evidence Act 2008; and, the application having been granted, cross-examined Murat in relation to the statement that he had earlier made to the police. Murat agreed that he had made the statement and sworn it. He also admitted that he had participated in the record of interview, but he said that the matters in the statement and the record of interview were not true (including the statement that the appellant entered the premises with him and had a gun). References were made during the cross-examination to the fact that Murat had pleaded guilty to a charge relating to the events the subject of the trial. Later, in other cross-examination by counsel for the appellant, Murat agreed that he was charged with 'a certain number of offences' and had served a term of imprisonment for them. In the course of the prosecutor's address to the jury, counsel referred to passages in the transcript where reference was made to Murat having pleaded guilty, and to Murat having identified the appellant in his interview as the person who produced a gun and threatened people with it. The prosecutor relied on the evidence of Murat and that of Ezedin to prove that the appellant was the person with the gun. In the course of the charge to the jury, the trial judge gave an accomplice warning.

167 On appeal, the appellant submitted that, based on what was said by this Court in Fountain and Tootell, the judge should have directed the jury not to use Murat's guilty plea as tending to establish the guilt of the appellant. The jury should have been told that they could use Murat's guilty plea only as going to his credit. Murat's evidence was likely to have been very important to the jury's reasoning, as he was the only identification witness who had previously known the appellant. The jury was told that Murat was 'the accomplice' and had pleaded guilty to offences arising from the very matters the subject of the trial. It was submitted that the jury may have used Murat's guilty plea as tending to establish the appellant's guilt. The respondent, however, submitted that there was no risk of the jury misusing the evidence of the guilty plea as a step in their reasoning towards the appellant's guilt, as the guilty plea was not 'logically probative of the appellant's guilt of the charges before the jury'. Moreover, a strong accomplice warning was given.

168 Mandie JA (with whom Neave JA and Cavanough AJA agreed) distinguished Fountain and Tootell. Their Honours were of the view that it was a very different case to the one they were considering because in that case, the presence of the accused at the scene was not disputed, the defence being a claim of self-defence. Fountain and Tootell could be distinguished because the guilty pleas by the co-accused to charges in relation to the same incident could have been viewed as very significant and, without adequate directions by the judge, risked being misused by the jury to undermine the accused's claim of self-defence.[91] Mandie JA said:[92]

[T]he defence did not contest that someone entered the premises that night armed with a gun, or what then occurred as alleged. Rather, the appellant's case was that he was not present at the premises and was not the man with the gun. Thus, there was no tangible risk that Murat's plea or pleas of guilty, whereby he accepted his involvement in the events at the night club that evening, would be used by the jury as tending to establish the guilt of the appellant on any of the charges against him. To find the appellant guilty, the jury had to accept the evidence of Murat (and/or Ezedin, the other identification witness) that the appellant was present at the premises and wielded the gun. Murat's guilty plea could not have assisted the jury and there was no real risk that it would have been used by the jury to establish or as tending to establish the appellant's guilt. The failure by defence counsel to take any exception, or to request the direction that the appellant now argues should have been given, must be taken as a recognition that this was so. In addition, the vagueness of the evidence concerning Murat's guilty plea would have made it counter-productive for the appellant to seek a direction drawing attention to it - no doubt another reason for not seeking such a direction. Finally, if such a direction had been sought, there is no reason to think that the judge would not have given it.

169 There are, in my view, at least four - and perhaps five - common law principles that may be distilled from the authorities which inform the resolution of the present appeal. First, the entry of a plea of guilty amounts to a formal confession by a person of the existence of every ingredient necessary to constitute the relevant offence.[93] Secondly, generally speaking, the confession of, or an admission by, a third party is not evidence either for or against an accused.[94] Thirdly, and probably as an aspect of the second principle, the plea of guilty of a third party with respect to an offence is not evidence of the guilt of another charged with the same or a related offence. The plea of guilty is thus inadmissible if it is sought to introduce it in proof of the same or a related offence against another. Fourthly, if the plea of guilty of a third party is admitted into evidence for a purpose other than to prove the commission of the offence by the accused, the judge must give directions as to its limited use, and, importantly, its non-misuse. The jury must be directed specifically that the plea of guilty cannot be used in proof of the guilt of the accused. Fifthly, it is necessary for a trial judge to direct the jury as to the permissible use and non-misuse of another's plea of guilty, even though an accused's counsel does not seek any such direction.[95]

170 In light of these principles, Bou-Elias must be taken as being an unusual case, confined to its own particular facts. With respect, I am not sure that I would have reached the same conclusions that the court in that case did; and it may be that a particular feature dictating the result in that case was the very strong accomplice warning given by the trial judge with respect to the evidence of Murat. In my opinion, however, no matter the factors which led to the dismissal of the appeal in that case, it does not provide sound guidance as to how the present case ought to be resolved.

The Evidence Act 2008

171 Given the manner in which various submissions on the appeal have unfolded, it is necessary to examine various provisions of the Evidence Act 2008 said to be relevant.

172 Chapter 3 of the Act is headed Admissibility of Evidence. Section 55(1), in Part 3.1, Relevance, provides:

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

173 Section 56(1) then makes plain that relevant evidence is admissible except as otherwise provided by the Act.[96]

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.[97]

174 Importantly, the Dictionary to the Act defines admission:

admission means a previous representation that is -

(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding; ...

175 The Dictionary also defines previous representation:

previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced; ...

176 An inclusive definition of representation is provided:

representation includes -

(a) an express or implied representation (whether oral or in writing); or

(b) a representation to be inferred from conduct; or

(c) a representation not intended by its maker to be communicated to or seen by another person; or

(d) a representation that for any reason is not communicated; ...

177 Generally speaking, hearsay evidence is proscribed by s 59, so that evidence of a previous representation made by a person 'is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation'. There are, however, a number of exceptions to the general proscription provided by the Act.[98]

178 Further, generally speaking, opinion evidence is proscribed by s 76, so that evidence of an opinion 'is not admissible to prove the existence of a fact about the existence of which the opinion was expressed'. Again, however, there are exceptions to the general proscription.[99]

179 Part 3.4 (ss 81 to 90) of the Act is headed Admissions. Sections 81 and 83 provide:

1. Hearsay and opinion rules - exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation -

(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.

...

1. Exclusion of evidence of admissions as against third parties

(1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.

(2) The evidence may be used in respect of the case of a third party if that party consents.

(3) Consent cannot be given in respect of part only of the evidence.

(4) In this section, third party means a party to the proceeding concerned, other than the party who -

180 Section 60, and in particular s 60(3), is pivotal. It is provided:

1. Exception - evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2)).

(3) However, this section does not apply in a criminal proceeding to evidence of an admission.

181 From an examination of these provisions, it might be observed that, where evidence of a previous representation is admitted[100] for a non-hearsay purpose, ordinarily the hearsay rule does not apply so as to prevent the use of the previous representation to prove the existence of any fact asserted in it (s 60(1) of the Act). That general rule, however, does not apply to an admission in a criminal case.

182 In a criminal case, an admission - a previous representation made by a party to the criminal proceeding, which is 'adverse to the person's interest in the outcome of the proceeding' - attracts the hearsay rule, subject to an important exception. Section 83 permits another party to a criminal proceeding (a 'third party'), with that party's consent, to use the admission in that party's case. (A typical example might be an accused in a criminal trial seeking to rely on a co-accused's interview with police as evidence in his or her own case as evidence of the facts asserted in it.)

183 As a matter of analysis, therefore, Salisbury's plea of guilty to offences arising out of the events of 13 June 2010, was an admission in the criminal proceeding to which he was a party. It was not an 'admission' in the criminal proceeding to which the appellant was a party, so that s 60(3) was not engaged. The plea was a representation that he was guilty of the offences charged against him. Theoretically, therefore, Salisbury's plea of guilty might be used for a non-hearsay purpose so as to prove the existence of any fact asserted in it. But what representation (or representations) did Salisbury's bare plea of guilty contain?

184 In my opinion, Salisbury's mere plea of guilty contained no representation other than that every element of every charge was made out against him. The bare plea contained no previous representation relevant to the appellant. It said nothing about the appellant's involvement in the crimes perpetrated at Wilson's home. Thus it was not admissible against the appellant in his trial. It could not could have 'rationally affect[ed] (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'.

185 The prosecution summary of facts may stand in a different position. Ordinarily a prosecution summary contains the facts relevant to the accused's offending. So long as not inconsistent with the guilty plea, the accused is capable of challenging the asserted factual basis of the offending (and this not uncommonly occurs). In my view, in most cases - one can readily conceive of exceptions - the failure of the accused (personally or through counsel or solicitor) to challenge content of the summary of facts is capable of amounting to an implied representation that the content of the summary is factually accurate. Thus were the accused to be called as a witness in the criminal proceeding of another, and for a non-hearsay purpose the reading of the summary of evidence was proven to have taken place without any challenge to its content, then - ignoring for present purposes, for example, discretionary exclusion - any representation so admitted into evidence would be capable of use as proof, in the case of the other, of any fact asserted.

186 Although Salisbury's cross-examination by the prosecutor did not make it abundantly clear,[101] one interpretation of the evidence is that the prosecution summary was read out on the plea hearing at the time that Salisbury's guilty plea was entered; that the prosecution summary was consistent with what Salisbury had told the police in his record of interview and statement; and that the prosecution summary asserted that the three offenders were Salisbury, Brendan Kirkwood and the appellant. That being so - and subject, of course, to discretionary considerations - s 60(1) of the Act permitted use of the prosecution summary thus elicited to prove the representation that the appellant was one of the offenders

187 During the oral hearing of the appeal, the practitioner appearing as counsel[102] for the appellant, sought leave to amend the ground of appeal by adding a further particular. I would grant the leave, so that the ground would be in the following terms:

A substantial miscarriage of justice was occasioned by:

(a) the prosecution having introduced Domenic Salisbury's plea of guilty into evidence; and

(b) the trial judge's failure to direct the jury against the impermissibility of using Salisbury's plea of guilty against the appellant.

188 Three questions therefore arise in this case for determination. First, was the evidence of Salisbury's guilty plea wrongly admitted? Secondly, the evidence having been admitted, was it incumbent on the judge to give directions to the jury as to the use - and non-misuse - of the evidence? Thirdly, has there been a substantial miscarriage of justice, either because the evidence should not have been admitted, or because there was no direction given to the jury as to its use?

189 As to the first question, it was not legitimate for the prosecution to lead evidence of Salisbury's guilty plea. It was irrelevant to any issue in the trial. The fact of the guilty plea could only have been evidence against him (and then, at best, only as to his credit). It was not evidence against the appellant.

190 It will be remembered that leave was given to the prosecutor under s 38 of the Evidence Act 2008. The only restriction imposed by the trial judge was that cross-examination was not to go to the question of Salisbury's motive to lie on behalf of the appellant. Otherwise, the judge granted leave to cross-examine without limitation, including as to matters going solely to credibility. But it must be borne in mind that the reason why the prosecutor sought to cross-examine Salisbury was to put before the jury the fact that he had, in an earlier statement and record of interview, implicated the appellant in the relevant offences. He did not deny that he had done so. Thus his plea of guilty was not a legitimate attack on his credit. It could only have gone in proof of his own confession to, or admission of, his own participation in the crime, a fact which he did not deny. Therefore, the evidence of the plea of guilty could not 'substantially affect the assessment of the credibility of the witness'.[103]

191 The question which elicited the fact of Salisbury's plea of guilty was put without seeking any ruling in advance.[104] Had the judge been requested specifically to consider the admissibility of the plea of guilty prior to the question which elicited its existence having been asked, I have little doubt that he would have refused to admit the evidence pursuant to s 135 of the Evidence Act 2008. That is because the evidence - if admitted without limitation as to its use - had the potential to be 'unfairly prejudicial' to the appellant, and its introduction was not necessary to attack Salisbury's credit. If I am wrong about that, however, and, upon the matter being raised with him, the judge had resolved to permit the adduction of the evidence of the plea of guilty, in my opinion it is likely that the judge would have limited the admission of the evidence on terms that the evidence go only to Salisbury's credit and no more.[105]

192 None involved in the trial seems to have turned his or her mind to the admissibility of the evidence now impugned. I can discern no sound forensic reason for defence counsel failing to object to the admission of the evidence, or seek a direction as to its use, any more than I can find any justification for the prosecutor in failing to adopt a prudent course and seek an advanced ruling, or later seek a direction as to the use of the evidence.[106] If the trial judge was concerned about either the admissibility of the evidence, or any directions required or desirable as to its use, he did not say so.

193 With respect to the second question, in my opinion the judge was in error in failing to direct the jury as to the use that could be made of the evidence of Salisbury's plea of guilty.

194 Once Salisbury's pleas of guilty had been introduced, it is unfortunate that neither counsel nor the judge seem to have turned their minds to the use to which the evidence could be put. Section 136 of the Evidence Act 2008 gives a general discretion to limit the use of evidence. It provides:

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

195 Had the judge been asked to exercise the discretion given to him by s 136 to limit the use to which Salisbury's plea of guilty could be put, it is very unlikely that the judge would have left it to the jury as bearing on the proof of the relevant offences against the appellant. At the very worst, in my view, the trial judge would have limited the use of the evidence to an assessment of Salisbury's credit.

196 Moreover, even absent s 136, I am in no doubt that once the evidence of Salisbury's guilty plea was elicited, it was incumbent on the judge to give directions to the jury as to its use and non-misuse, whether or not counsel sought such directions.[107] There was potential for the evidence to be misused. A judge has a general obligation to give any warning or direction necessary to avoid a perceptible risk of a miscarriage of justice.[108] Hence the jury should have been directed that the guilty plea could only be used as going to Salisbury's credit, and thus solely as to whether they were prepared to accept his evidence (or any part of it). Further, the jury should have been instructed that it was not evidence against the appellant, in the sense that it could not be used as an aid to establishing his guilt. No directions were given. There has thus been a miscarriage of justice.

197 Before leaving this issue, it will be recalled that I earlier mentioned that, when seeking leave to cross-examine him, the prosecutor had foreshadowed that she would seek to tender Salisbury's 'prior statements' as proof of their truth, pursuant to s 60 of the Act. For the reasons earlier canvassed, s 60 could have no application to evidence of Salisbury's plea of guilty.

198 The more difficult question is the third: is the miscarriage of justice substantial?[109]

199 As I have observed, the appellant's case at trial is that he merely drove Salisbury, Kirkwood and Aje to Mr Wilson's premises, ignorant of any plan to rob Mr Wilson. He drove away from Mr Wilson's address once the other three had entered the premises, and only returned when he realised he needed to retrieve his wallet. Upon returning, he encountered Salisbury, Kirkwood and Aje in the street, the offences on Mr Wilson presumably having been committed in his absence. He drove away with them in his car, only to be stopped by police.

200 The prosecution sought to rely on Salisbury's original version to police, upon which he endeavoured to renege at the appellant's trial. It was important to the prosecution case to put forward Salisbury's version to police - which implicated the appellant in being party to an agreement to rob Wilson, and as being one of the offenders inside Wilson's premises - as the true version. It cannot be gainsaid that Salisbury's credit was critical to an assessment of where the truth lay. Thus it was legitimate to cross-examine him on his previous statement and record of

201 As I have said, however, Salisbury's plea of guilty should not have been admitted; but, even if I am wrong about that, the plea of guilty should have attracted proper directions to avoid its misuse by the jury.[111] Could the evidence have made a difference to the verdicts, in the sense that guilty verdicts were inevitable notwithstanding the error?[112] In my opinion, without proper direction being given, there is every risk that the jury might wrongly have used Salisbury's plea of guilty as evidence of the appellant's guilt. It may well have had a substantial - but illegitimate - effect on the jury's collective reasoning. Indeed, in her final address the prosecutor specifically sought to use it to the prosecution's advantage. I am therefore unable to conclude that conviction would have been inevitable despite the identified error.[113] Thus, in my opinion there has been a substantial miscarriage of justice, and the verdicts must be set aside.

202 I would allow the appeal, set aside the convictions and sentences, and order a retrial.

[1] See definition of 'representation' in the Dictionary to the EA, which could have been used as evidence of the facts asserted pursuant to s 60 of the EA.

[2] R v Cowell (1985) 24 A Crim R 47, 49-50 (Street CJ) ('Cowell').

[3] Chow v DPP (NSW) (1991) 28 NSWLR 593, 605; Mielicki, Whitman and Poniewaz v The Queen (1994) 73 A Crim R 72, 7.

[4] (Unreported, Victorian Court of Criminal Appeal, Starke, Murphy and Marks JJ, 7 October 1981) ('Ristic').

[6] [1986] VicRp 25; [1986] VR 219 ('Gallagher').

[8] (1985) 24 A Crim R 47.

[12] [2001] VSCA 200; (2001) 124 A Crim R 100 ('Fountain').

[14] (1994) 76 A Crim R 148.

[15] (1985) 24 A Crim R 47.

[16] Fountain (2001) 24 A Crim R 100, 110 [29] (emphasis added).

[18] [2002] VSCA 98; (2002) 131 A Crim R 299.

[22] [2012] VSCA 61 ('Bou-Elias').

[26] [2001] VSCA 200; (2001) 124 A Crim R 100.

[27] [2012] VSCA 61, [25].

[29] (2013) 227 A Crim R 81 ('Andelman').

[30] (Unreported, Victorian Court of Criminal Appeal, Starke, Murphy and Marks JJ, 7 October 1981).

[31] (2013) 227 A Crim R 81, 90 [39].

[33] [1986] VicRp 25; [1986] VR 219.

[34] (1985) 24 A Crim R 47.

[35] [2001] VSCA 200; (2001) 124 A Crim R 100.

[36] [2012] VSCA 61.

[37] (2013) 227 A Crim R 81.

[38] [2001] VSCA 200; (2001) 124 A Crim R 100.

[39] (1985) 24 A Crim R 47.

[40] Cf Bou-Elias [2012] VSCA 61, [25] (Mandie JA).

[41] (2013) 227 A Crim R 81, 92 [52].

[42] (2013) 227 A Crim R 81.

[44] Ibid 105-9 [21]-[39] (Gleeson CJ, McHugh, Kirby and Hayne JJ).

[45] [2002] NSWCCA 186; (2002) 54 NSWLR 474.

[47] [2011] VSC 103 ('Bourband').

[48] J D Heydon, Cross on Evidence (6th Aust ed, 2013) [17405].

[49] R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474, 486 [67], 488 [73].

[50] Adam v The Queen (2001) 207 CLR 96, 104-5.

[51] Ibid 109 [37]; Australian Law Reform Commission, Evidence, Report No 38 (1987) 79 [144].

[52] [2014] VSCA 31R, [274].

[54] (1998) 195 CLR 594, 599-600.

[55] (Lawbook, 2nd ed, 2013) [1.3.4810].

[56] Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) 425 [755].

[57] Australian Law Reform Commission, Review of the Uniform Evidence Acts, Discussion Paper No 69 (2005) [9.5].

[58] Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 1st ed, 2010) 152. See also Texxcon Pty Ltd v Austexx Corporation Pty Ltd [2013] VSC 327, [66] (Davies J).

[59] Cotic v Western Australia [2012] WASCA 252.

[60] R v Delgado-Guerra [2001] QCA 266, [34]-[37]; Western Australia v McCarron [2010] WADC 34, [27]-[29]; R v GAC [2007] NSWCCA 315, [56] (Giles JA, with whom Hulme and Hislop JJ agreed).

[61] [2011] VSC 103.

[62] SLS v R [2014] VSCA 31R, [274].

[63] [2001] QCA 266, [37].

[64] By analogy, see, eg, Texxcon Pty Ltd v Austexx Corporation Pty Ltd [2013] VSC 327, [66]-[68], in which Davies J inferred in the absence of evidence to the contrary that facts stated in the defendants' pleadings could be attributed to and reflect the instructions of the defendants.

[65] R v Rose [2002] NSWCCA 455; (2002) 55 NSWLR 701, 709 [262].

[66] [1986] VicRp 25; (1986) VR 219.

[67] (1985) 24 A Crim R 47.

[68] [2001] VSCA 200; (2001) 124 A Crim R 100.

[69] (2013) 227 A Crim R 81.

[71] [2012] VSCA 61.

[72] [2011] VSC 103.

[74] [1986] VicRp 25; [1986] VR 219.

[75] [2104] VSCA 121, [207]. See also Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 319 (McHugh J); FDP v The Queen [2008] NSWCCA 317; (2008) 192 A Crim R 87, 91.

[76] He was acquitted of intentionally causing injury, recklessly causing injury being a lesser alternative.

[77] Leave was refused with respect to three other grounds. The appellant did not, however, elect under s 315(2) of the Criminal Procedure Act 2009 to have those grounds considered by an expanded bench. The grounds upon which leave was refused were:

1. The tender of the record of interview of the witness Domenic Salisbury in its entirety following the conclusion of his evidence resulted in a substantial miscarriage of justice.

2. The grant of leave that cross-examination of the witness Domenic Salisbury extend to the tender of his record of interview in its entirety at the conclusion of his evidence was contrary to s 192 of the Uniform Evidence Act.

3. The discovery by the jury of material that had not been tendered in an exhibit constituted a fundamental procedural irregularity that created a high degree of need for the discharge of a jury and the learned trial judge erred in failing to discharge the jury.

[79] I am far from confident that the jury would have appreciated the differences between the record of interview and the statement, but nothing of importance turns on this.

[80] Judicial College of Victoria, Victorian Criminal Charge Book, 4.14.3.

[81] R v Cowell (1987) 24 A Crim R 47 ('Cowell'). See also R v Ormond [2012] SASCFC 130, [84]-[85].

[82] R v Moore (1956) 40 Cr App Rep 50, 53-4.

[84] Burnett v R (1994) 76 A Crim R 148 ('Burnett').

[85] Burnett, 152. See also Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537, [67]-[68].

[87] R v Fountain and Tootell [2001] VSCA 200; (2001) 124 A Crim R 100.

[89] Andelman v R (2013) 227 A Crim R 81, 91-2 [49]-[52] (Maxwell P, Weinberg and Priest JJA). See also R v Ristic (Unreported, Vic, CCA, 7 October 1981); R v Gallagher [1986] VicRp 25; [1986] VR 219.

[90] Bou-Elias v R (No 1) [2012] VSCA 61.

[93] De Kruiff v Smith [1971] VicRp 94; [1971] VR 761, 765; R v Ingliss [1917] VicLawRp 99; [1917] VLR 672; R v Henry [1917] VicLawRp 76; [1917] VLR 525, 526; R v Broadbent [1964] VicRp 94; [1964] VR 733, 736; R v D'Orta-Ekenaike [1998] 2 VR 140, 146-7.

[94] R v Van Beelen (1974) 9 SASR 163; R v Alexander [1979] VicRp 63; [1979] VR 615; R v Blastland [1986] AC 41; R v Greatorex (1994) 74 A Crim R 496; Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1; Robinson v R (1996) 15 WAR 191; R v Al Qassim [2009] VSCA 192; Baker v The Queen (2012) 245 CLR 632. Cf R v Myers [1998] AC 124; R v Hayter [2005] 2 All ER 209, [2005] 1 WLR 605. Section 83(2) of the Evidence Act 2008 permits an accused to rely on an admission by a co-accused where there is consent to do so.

[95] Andelman v R (2012) 227 A Crim R 81, 91-2 [49]-[52]. This last proposition may now in certain circumstances have to yield to the provisions of the Jury Directions Act 2013. See ss 13 and 15.

[96] See Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 307 [23]-[24] (Gleeson CJ and Hayne J), 311-2 [45]-[46] (Gaudron and Kirby JJ), 320-1 [75]-[76] (McHugh J).

[98] See ss 60, 63, 64, 66, 66A, 69 to 75, 81, 87(2), 92(3), 110 and 111.

[99] See ss 50(3), 77, 78, 78A, 79, 81, 92(3), 110 and 111.

[100] It is necessary to notice that s 60(1) speaks of a previous representation which is 'admitted' for a purpose other than proof of an asserted fact, and has nothing to say as to whether a particular piece of evidence is in the first place admissible.

[101] See [123] above.

[102] The Court is indebted to her for taking on the preparation of the appeal at short notice.

[103] Evidence Act 2008, s 103(1).

[104] Evidence Act 2008, s192A. See also s 57.

[105] Evidence Act 2008, s 192.

[106] R v Caine (1990) 48 A Crim R 464, 465.

[107] I note that the trial was conducted prior to the enactment of the Jury Directions Act 2013. It is unnecessary to consider whether a different result might have flown had that Act been in operation.

[108] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson and Toohey JJ). See also Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, 324-5; Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330 (Brennan J), 339 (Deane J); RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, 637 [41] (Gaudron ACJ, Gummow, Kirby and Hayne JJ); Greensill v R (2012) 226 A Crim R 416, 429-30 [48]-[49] (Redlich, Osborn and Priest JJA).

[109] Criminal Procedure Act 2009, s 276(1)(b).

[110] I doubt that it was legitimate, however, for the whole of the statement and record of interview to be tendered, particularly when parts only were the subject of cross-examine. Grounds which complained that the whole of the statement and record of interview should not have been admitted were refused a grant of leave; and, since the application for leave was not renewed on these grounds, I must proceed on the basis that they were properly before the jury.

[111] See [169] above.

[112] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Andelman v The Queen (2013) 227 A Crim R 81.

[113] I note that the jury retired at 12:31pm on 15 March 2012, and returned a majority verdict at 3:38pm on 16 March 2012, the judge having completed a modified form of Black direction (see R v Muto and Eastey [1996] VicRp 21; [1996] 1 VR 336) some 11 minutes earlier, at 3:27pm.