The ACT Court of Appeal held that a co-offender's plea of guilty on a joint indictment, entered by reference to a statement of agreed facts filed in court (even if unsigned), constitutes a prior representation for the purposes of s 43 of the Evidence Act 2011 (ACT), and that the statement of agreed facts is admissible as a prior inconsistent statement where the co-offender gives inconsistent evidence at trial. The Court applied the correctness standard of review under s 137 and found the probative value of the statement for credibility purposes was not outweighed by the danger of unfair prejudice, particularly where the jury had already heard the substance of the material through other evidence and a clear limiting direction was given. The Court also held that r 5531 of the Court Procedures Rules, which requires objection at trial as a precondition to appeal, applies only to alleged errors by the trial judge (directions or evidentiary rulings) and does not extend to complaints about prosecutorial conduct in closing address. The Court left open the question raised in Abbas v The Queen as to whether a co-offender's statement of agreed facts could be admitted as evidence of the truth of its contents, rather than merely for credibility.
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