In a joint trial involving multiple co-accused, a question arises as to the extent one accused person should be entitled to give or adduce evidence that, while tending to exonerate them, causes prejudice to their co-accused. As a basic example, suppose the prosecution alleges two accused people were involved in a murder. Each accused person runs a ‘cut-throat’ defence, blaming the other. One of the co-accused wants to adduce evidence that the other has a history for violence.
It has long been settled that trial judges have a discretion to exclude prosecution evidence of such a prejudicial nature. But does a judge have a similar discretion to exclude evidence adduced by a co-accused in a joint trial, due to prejudice that may be occasioned to another? Or does a co-accused have an unfettered right to give evidence in their defence? In the recently decided McNamara v The King [2023] HCA 36, the High Court considered this question in relation to the Uniform Evidence Law (UEL), but also considered the common law position (although as will be seen, it left the common law in an unsettled state).
McNamara v The King [2023] HCA 36
FACTUAL BACKGROUND
Mr McNamara and his co-accused, Rogerson, had been convicted by a jury of murder and a serious drug offence. McNamara gave evidence in his own defence. As part of his testimony, he sought to give evidence that Rogerson had told him: ‘I did Drury, I did Drury. I’ll do you too.’
McNamara also sought to give evidence that Rogerson had earlier told McNamara he had shot Michael Drury – being the ‘Drury’ he referred to above. The trial judge exercised his discretion under s 135 UEL to exclude the testimony. McNamara was convicted.
OVERVIEW WITH RESPECT TO THE UEL
McNamara, as an appeal from The Court of Criminal Appeal of the Supreme Court of New South Wales (NSWCCA), relates to the UEL. Section 135 of the UEL provides trial judges with a discretion to exclude any evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to ‘a party’. The question on appeal was whether the term ‘a party’ as used in s 135 includes a co-accused in a joint criminal trial. If so, it would mean that co-accused do not have an unfettered right to adduce evidence which might cause prejudice to their other co-accused – that right is limited by the discretion in s 135, as exercised by the trial judge.
Ultimately, the High Court agreed with the NSWCCA, holding that the term ‘a party’ includes each co-accused (at [62]), and thus the s 135 discretion can be exercised by a trial judge in situations like this. Accordingly, the High Court dismissed Mr McNamara’s appeal.
OVERVIEW WITH RESPECT TO THE COMMON LAW
In the High Court, Mr McNamara argued that at common law, a co-accused has an unfettered right to answer to the Crown case against them by adducing any admissible evidence probative of their own innocence (at [19]).
In the majority judgment, Gageler CJ, Gleeson and Jagot JJ explained the public interest considerations and principles informing why joint trials are held. Their Honours cited authority that said:
‘… particularly when each of the accused is seeking to cast the blame on to the other, the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast it.’ (at [40])
Their Honours said:
‘Whether or not the right of a co-accused to adduce admissible evidence probative of his or her innocence for which McNamara contended ought to be understood to form, or ever to have formed, a principle of the common law of Australia falls to be ascertained against that broader background of considerations supporting the conduct and continuation of a joint trial.’ (at [43])
Their Honours then referred to a number of decisions dealing with the issue of whether, at common law, a judge has a discretion which disrupts the suggested ‘unfettered right’ of a co-accused to adduce any admissible evidence probative of their innocence. In 1974 the Privy Council suggested the answer to be “no” (Lowery v The Queen [1974] AC 85), reaffirmed in the Council’s advice in 1995 in Lobban v The Queen [1995] 1 WLR 877). The Full Court of the Supreme Court of Victoria said “no” in R v Lowery [No 3] [1972] VR 939. In R v Miller [1952] 2 All ER 667 an order for a separate trial based on potential such evidence being given was refused, and that decision was relied upon by the Court of Appeal of Hong Kong in Lui Mei Lin v The Queen [1989] AC 288 in holding that the right of a co-accused to adduce evidence relevant to the defence of that co-accused in cross-examination of another co-accused was unfettered.
On the other hand, the Full Court of the Supreme Court of Victoria gave a qualified “yes” (that the trial judge does retain a discretion to exclude evidence from one co-accused which causes prejudice to the other) in R v Darrington [1980] VR 353 and R v Gibb [1983] 2 VR 155, although those decisions suggest that the circumstances justifying the exercise of the discretion would be exceptional.
Ultimately, Gageler CJ, Gleeson and Jagot JJ said that, following Lobban, the proposition that a co-accused has an unfettered right to adduce admissible evidence probative of their innocence came to be accepted by superior courts in common law evidence jurisdictions, noting that:
‘The proposition has since also come to be accepted by Courts of Appeal of the Supreme Courts of Queensland, South Australia and Western Australia.’ (at 48)
However, the majority declined to determine whether that proposition is in fact correctly regarded as part of the law in common law evidence jurisdictions:
‘Whether the proposition should be taken to have acquired the status of a principle of the common law of Australia operative in those three States need not now be determined.’ (at 48)
On this issue, Gordon and Steward JJ came to a more concrete conclusion:
‘The contention that at common law an accused had an unfettered right to adduce evidence should not be accepted.’ (at [104])
Gordon and Steward JJ considered that Lowery [No 3]; R v Darrington and R v Gibb all supported the existence of a discretion (at [105]). Their honours further observed that such a discretion was coherent with the duty of the trial judge to provide each accused with a fair trial (at [109]), and that in each case consideration needs be given to the interests of justice – which are not just the interests of the accused. Their Honours noted that these interests included:
‘not over-burdening the jury, not allowing the accused to have a separate trial where they could secure their acquittal through an explanation which cannot be controverted by a co-accused and not allowing evidence of only slight probative value to undermine other interests of the system of the criminal trial.’ (at [111])
CONCLUDING ANALYSIS – DOES A CO-ACCUSED HAVE AN ‘UNFETTERED RIGHT’ AT COMMON LAW?
Following the majority’s refusal to determine the issue, it remains unsettled at common law whether or not there exists a discretion which disrupts a co-accused’s ‘unfettered right’ to adduce admissible evidence probative of their innocence. However, the minority judgment provides compelling justification for the existence of such a discretion, at least in exceptional cases where the interests of justice require it. It remains to be seen whether this issue will ever be determined.
By contrast, McNamara makes it clear that in the Uniform Evidence jurisdictions, the statutory framework of the UEL has said ‘yes, there exists such a discretion’. With adoption of the UEL in Western Australia seeming increasingly likely in the foreseeable future, some might be optimistic that the UEL will provide a definitive answer on this issue in Western Australia.
This post is jointly authored by Matthew Thompson and Aidan Ricciardo
Evidence Law in Western Australia 