McNamara v The King [2023] HCA 36

HIGH COURT OF AUSTRALIA

GAGELER CJ

GORDON, STEWARD, GLEESON AND JAGOT JJ

GLEN PATRICK MCNAMARA APPELLANT

AND

THE KING RESPONDENT

McNamara v The King

[2023] HCA 36

Date of Hearing: 16 May 2023

Date of Judgment: 15 November 2023

S143/2022

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

G O'L Reynolds SC with G D Wendler and D A Ward for the appellant (instructed by Kings Law Group)

S C Dowling SC with E Balodis and A L Bonnor for the respondent (instructed by Director of Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

McNamara v The King

Evidence – Criminal trial – Joint trial – Discretionary exclusion rule – Where appellant and co‑accused convicted of murder and supplying large commercial quantity of methylamphetamine – Where appellant sought to lead evidence at trial that co‑accused admitted participation in several homicides and other criminal violence to establish defence of duress – Where evidence excluded because unfairly prejudicial to co‑accused – Where s 135(a) of Evidence Act 1995 (NSW) permits court to refuse to admit evidence if probative value substantially outweighed by danger of unfair prejudice to "a party" – Whether "a party" includes co‑accused in joint criminal trial.

Words and phrases – "a party", "discretionary exclusion", "evidence", "interests of justice", "joint criminal trial", "joint indictment", "jointly charged", "proceeding", "reasons of principle and policy", "right to adduce admissible evidence", "unfairly prejudicial".

Criminal Procedure Act 1986 (NSW), ss 21(2)(b), 29, 29A.

Evidence Act 1995 (NSW), ss 9, 135(a).

1. GAGELER CJ, GLEESON AND JAGOT JJ. Section 135(a) of the Evidence Act 1995 (NSW) ("the Evidence Act") empowers a court to refuse to admit evidence, that is relevant and otherwise admissible in "a proceeding", if the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to "a party". The question in this appeal is whether "a party" includes a co-accused in a joint criminal trial. The answer is that it does. The Court of Criminal Appeal of the Supreme Court of New South Wales was correct so to hold, and the appeal must be dismissed. 2. To explain that answer in a manner responsive to the argument of the appellant, it is necessary to say something of the nature of a joint criminal trial, to examine the antecedent common law pertaining to the exclusion of evidence sought to be adduced by a co-accused, and to explain more fully how the scheme of the Evidence Act applies to a joint criminal trial.