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Nguyen v The Queen - Exculpatory Statements

On 30 June 2020,  the High Court delivered a significant criminal judgment dealing with a point of evidence law. The decision of Nguyen v The Queen [2020] HCA 23 made it clear that when dealing with an accused’s admissions, the court was firmly in favour of requiring the prosecution to lead evidence of any exculpatory statements made by an accused person and put before the jury at the trial. The big issue in the case was what are known as “mixed statements”: those containing both inculpatory and exculpatory statements from an accused.


The case came from the Northern Territory where the Full Court of the Supreme Court of the Northern Territory had considered the two following questions, posed for it by a trial judge:

  1. Was the police electronic record of interview with the accused admissible in the Crown case?
  2. Was the Crown obliged to tender the recorded interview?

The three-member NT Court answered yes to the first question and no to the second. The seven-member High Court overturned that decision answering yes to both questions.

The High Court’s reasoning

As the joint judgment of Chief Justice Kiefel and Justices Bell, Gageler, Keane and Gordon put it, the Prosecution must put its case both fully and fairly before the jury. “It is well settled that if the Prosecution seeks to rely upon an out-of-court admission or other incriminating statement the whole statement made by the accused must be put before the jury, including those hearsay statements by which the accused tried to exculpate himself or herself,” they said.

The judgment directed that the Prosecution could not “pick and choose” between statements which it said bore out its case and those which did not, such as exculpatory statements. It had to “take the good with the bad”. The prosecutor’s obligation was to present all available, cogent and admissible evidence. Unlike those representing a defendant, prosecutors should not set out to win or lose, but merely to assist the court find the truth.

Allowing the whole mixed statement in meant that the jury would be shown how the accused first responded to the allegations made against him when first given the opportunity to respond.

Prosecution must present its case fully and fairly

“A line of authority in NSW refers to the common practice of the Prosecution adducing evidence of conversations with police containing exculpatory statements,” the joint judgment said. “A justification for the practice is said to be that otherwise the jury would be left to speculate as to whether the accused had given any account of their actions when first challenged by the police.”

The High Court noticed differences in prosecutorial practices or the views of judges and intermediate appellate courts of the various states and territories but found “there can be no question about the obligation of the Prosecution to present its case fully and fairly”. This is “a fundamental principle”.

The second question involved some differences of opinion, with Justices Nettle and Edelman writing separate judgments, while agreeing with the court’s overall decision. The sticking point for Justices Nettle and Edelman was the notion of whether the Prosecution was under an “obligation” to tender the evidence.

Prosecution cannot be compelled to tender evidence

The joint judgment found that the tender of evidence by the Prosecution could not be compelled by a trial judge as it fell within a prosecutorial duty, although in practice a trial judge might suggest that the Prosecutor reconsider a decision not to tender certain evidence.

“A trial judge might do so where it is foreseen that a failure to do so may result in a miscarriage of justice,” the five judges said. “Whilst the decision remains one for the Prosecutor to make, the reality is that if the exercise of that discretion miscarries the accused might be denied a fair trial.”

While acknowledging that “a fair trial” could not be exhaustively defined, the five judges said there could be no doubt that fairness encompassed the presentation of all available, cogent and admissible evidence.

“Whilst the creation of a tactical advantage (which the Prosecutor in Nguyen agreed he had taken) might be permissible in civil cases, in criminal cases it may not accord with traditional notions of a prosecutor’s function,” the judgment said.

The joint judgment concluded that the interview was the accused’s detailed and consistent account of events which he believed would be placed before the trial court. “The decision not to adduce it was admittedly a tactical one, to favour the Crown,” the judgment said. “It did not accord with the prosecutorial obligation respecting the presentation of the Crown case and disadvantaged the appellant.”

Justice Edelman drew what he himself described as a fine line about the “obligation” of the Prosecutor to tender the interview. “There is a difference between, on the one hand, asking an appellate court directly to review a decision of a Crown prosecutor about whether to call a witness when the prosecutor has no legal duty to do so and, on the other hand, asking an appellate court to make an assessment of the fairness of a trial, such as that made in the context of an appeal from conviction,” he wrote.

The bottom line of the High Court decision is that defendants can have confidence that if they give a “mixed statement”, it should be before the jury because it contains material favourable to them. The joint judgment noted that there are some rare exceptions, saying: “It would not be necessary for the full presentation of the prosecution case to adduce evidence which is no more than a scurrilous attack on the character of a witness or when it is clear to demonstrate that it is false, as where it is contradicted by other, objective evidence.”

It is important to note that anyone charged with a criminal offence should seek specialist legal advice prior to engaging in an interview or speaking to police.

If you require legal advice in relation to exculpatory statements or any other legal matter, please contact Armstrong Legal.

Andrew Fraser - Managing Associate - Canberra

This article was written by Andrew Fraser - Managing Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

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