MR HUTLEY: The United Kingdom has held that the words “adduced in the proceedings” mean admitted in the proceedings. In that regard, one can see that that is the ordinary meaning - - -
KIEFEL CJ: We will proceed until we are interrupted again.
MR HUTLEY: [...] We submit there were powerful reasons for the conclusion that the true construction was “admitted”. The driving consideration against it was the reference to “fresh” and we say that is an error.
KIEFEL CJ: Yes, Mr Hutley.
MR HUTLEY: [...] It should not be construed to render admissible evidence that which was inadmissible.
MR HUTLEY: [...] Even if it is tendered then one moves to the second question of construction, namely - - -
MR HUTLEY: [...] What we submit is the construction of the two is – and I will assume now “tender” is the word rather than “admitted” – that the policy is that the defendant, respondent here, people in the respondent’s position, should not be - - -
KIEFEL CJ: Mr Hutley, would you prefer to continue or stand down until the fire alarm is over? I know it is not interrupting your focus
MR HUTLEY: If your Honours are happy for me to continue, I will continue, rather than - - -
KIEFEL CJ: Yes, thank you.
MR HUTLEY: [...] The first question, your Honour, is whether “tender” is - - -
MR HUTLEY: If “adduced in the proceeding” means admitted, then on any version the Court of Appeal erred, and one does not have to get to (b). The evidence simply was not admitted, nor could be admitted. The Court of Appeal erred. If it means tendered, the question then becomes could evidence be tendered in those proceedings with the exercise of reasonable diligence if it is clearly inadmissible. That, in other words is, if it is just a physical possibility to, as it were, hand it across the Bar table is the test - - -
MR HUTLEY: What we are putting, Chief Justice, is if that is the meaning then there is nothing – this elaborate structure in (2) was utterly otiose.
SOURCE: Attorney-General for New South Wales v XX [2019] HCATrans 52 (22 March 2019)