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Key decisions

  • Nguyen v The Queen [2020] HCA 23 
  • Minister for Immigration and Border Protection v CED16 [2020] HCA 24

Criminal trial

Mixed statements

The question for consideration by the High Court in Nguyen v The Queen [2020] HCA 23 (30 June 2020) was: what are the legal consequences, for a trial governed by the Evidence (National Uniform Legislation) Act 2011 (NT), of the refusal of a prosecutor to tender into evidence a ‘mixed’ video record of interview between the police and an accused person – that is, a record containing both inculpatory and exculpatory statements.

The appellant, Nguyen, was charged on indictment with offences against the Criminal Code (NT) and stood trial before a jury in the Supreme Court of the Northern Territory. He had been interviewed by the police about the offences in question prior to being charged. 

The interview was recorded electronically. The recorded interview contained statements by the appellant in the nature of admissions together with exculpatory statements.

The recorded interview was relevant and admissible, but the prosecution did not tender it as part of the Crown case, although it was not suggested that the statements made by the appellant in the recorded interview were demonstrably untrue or unreliable. The essential reason for the refusal to tender the statements into evidence was that they would not assist the Crown case.

In the High Court, the appellant contended that the prosecution’s obligation of fairness in the conduct of a trial would require the recorded interview containing the mixed statements to be tendered unless there were good reasons not to do so. 

The High Court accepted this, and said that the decision not to adduce it did not accord with the prosecutorial obligation respecting the presentation of the Crown case and had disadvantaged the appellant.

Kiefel CJ, Bell, Gageler, Keane and Gordon JJ jointly. Nettle J and Edelman J each separately concurring. Appeal from the Full Court of the Supreme Court of the Northern Territory allowed.


Refugees – application for protection visa – Immigration Assessment Authority

In Minister for Immigration and Border Protection v CED16 [2020] HCA 24 (30 June 2020) the question for consideration by the High Court concerned the meaning of the words, ‘new information’ in Pt 7AA of the Migration Act 1958 (Cth). In the Federal Court of Australia, the primary judge had concluded that the Immigration Assessment Authority made a jurisdictional error. This conclusion was dependent on his Honour having found that a ‘certificate’ was new information within the meaning given by s 473DC(1). The Minister appealed, arguing that it was wrong to characterise the certificate as ‘new information’. The High Court agreed and allowed the appeal by application of principles established in prior decisions of the High Court. 

Gageler, Keane, Nettle and Gordon JJ jointly. Edelman J separately concurring. Appeal from the Federal Court of Australia allowed.  

This edition of the LSJ includes David Kelsey-Sugg’s last High Court judgments column. We thank him for his valuable contribution. 

David Kelsey-Sugg is a barrister at Castan Chambers in Melbourne.