FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
KHALID BAKER APPELLANT
AND
THE QUEEN RESPONDENT
Baker v The Queen
[2012] HCA 27
15 August 2012
M154/2011
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Victoria
Representation
M J Croucher SC with L C Carter for the appellant (instructed by Doogue & O'Brien)
G J C Silbert SC with B L Sonnet for the respondent (instructed by Solicitor for Public Prosecutions (Vic))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Baker v The Queen
Criminal law – Evidence – Common law – Hearsay – Admissions – Appellant and co‑accused jointly tried for murder – Appellant convicted; co-accused acquitted – Co‑accused made certain admissions in police interview and to witnesses ("out-of-court confessional statements") – Consideration of Bannon v The Queen (1995) 185 CLR 1 – Whether out-of-court confessional statements were admissible in exculpation of appellant as exception to hearsay rule.
Words and phrases – "admissions", "against penal interest", "hearsay rule", "out‑of-court confessional statements".
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. On 26 March 2008, the appellant and a juvenile, LM, were arraigned in the Supreme Court of Victoria (Whelan J) on a presentment charging them jointly with the murder of a young man named Albert Snowball. On Sunday 27 November 2005, the deceased was at a party on the first floor of a converted warehouse in Brunswick. At around 3am, an altercation took place on the landing of the stairwell just outside the party. In the course of the altercation, the deceased crashed through a window and fell 5.4 metres to the ground. He died two days later as the result of the injuries he sustained in the fall.
It was the Crown case that at the time of his fall the deceased was being attacked by the appellant and LM. The precise circumstances of the fall were not known. A push or punch might have projected him through the window, or the window may have shattered as he backed away from the fury of the attack. On either view, the act or acts of the appellant and LM in attacking the deceased were capable of being the legal cause of his death[1]. It was not alleged that the appellant or LM intended that the deceased should go through the window. On the Crown case, each was liable for his murder because they were acting in concert with the intention of inflicting really serious injury or because one was aiding and abetting the other knowing the other was assaulting the deceased with that intention.
A number of witnesses described the events on the landing leading up to the deceased's…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Baker v The Queen [2012] HCA 27
Case
[2012] HCA 27
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, who had been jointly tried with a co-accused, LM, for murder. The appellant was convicted of murder, while LM was acquitted. The central dispute concerned the admissibility of out-of-court confessional statements made by LM, which the appellant sought to adduce in his own defence.
The legal issue before the High Court was whether LM's out-of-court confessional statements, which tended to exculpate the appellant, were admissible in evidence against the Crown as an exception to the hearsay rule. This required the Court to consider the existing common law position on hearsay and admissions, particularly in light of the decision in *Bannon v The Queen*, and whether the circumstances warranted a departure from established principles to allow such statements to be used in favour of a co-accused.
The High Court reasoned that the common law in Australia regarding exceptions to the hearsay rule should not be altered in the manner advocated by the appellant. The Court found that LM's statements were not admissible in the appellant's favour, distinguishing the present case from *R v Myers* and finding that the trial judge's direction on the matter was correct. Consequently, the appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It is convenient at this juncture to refer to the evidence given at the joint trial and the contents of LM's statements in some detail. The evidence On the evening of Saturday 26 November 2005, around 100 to 200 people attended the warehouse party. A band was to perform at the party. LM attended the party with a view to "free-styling" with the band. LM travelled to the party in a car with several other persons. The group included the appellant, Ali Faulkner and Lado Morgan. The atmosphere at the party was described as being good until around 3am. At that time, two persons, who it was open to find were the appellant and Faulkner, commenced an apparently random and unprovoked assault on the party-goers. On the Crown case, LM joined in the violence. Neither the appellant nor LM put in issue his presence at the party at the time the violence commenced or on the landing in the period before the deceased's fall. There were a number of people on the landing at that time. Common to the accounts of all of the witnesses was that a fight was taking place on the landing at the time the window shattered. As may be expected, the accounts of the witnesses of this violent and fast-moving incident varied considerably. The appellant, LM and Morgan are all of African origin. The deceased was Caucasian. A number of witnesses described the appellant by reference to his wide, or big, eyes, muscly body, and headband described as a "do-rag". Several said he was bare chested at the time of the fight on the landing. Morgan is tall. His hair was styled in "corn rows". Faulkner does not appear to be of African origin. He was described as being of Arabic or Lebanese appearance. The following account of the evidence is taken from the judgment of the Court of Appeal supplemented by reference to the summary of evidence, which forms part of the appeal papers. The appellant, Faulkner and, on the Crown case, LM exhibited a high degree of aggression over several minutes inside the room in which the party was held. Party-goers, including women, were punched and struck with bottles. The appellant, Faulkner and LM then left the party through a doorway which opened onto a landing on the stairwell. On the first version of events, given by Asher Doig, Peter Arcaro, Earl Stuart and Patricia Brady, it was open to find that the appellant was the principal assailant. On the second version, given by Nassir Asfer, Eric Masonga and, to some extent, Morgan, it was open to find that LM was the sole assailant. Doig was on the landing. He saw five or six black men come out onto it from the party. They were behaving "very aggressively". They started pushing the deceased. At least two instigated the assault on him. The appellant was the main instigator. The other assailant was tall and had corn rows. At one point, the deceased was pushed against a railing and the appellant ran up and kneed him in the chest or ribs. The group then walked down to the lower landing. As they did, the deceased said something like "you bastards". The appellant ran back up the stairs and began punching the deceased and behaving "in a very psychotic manner". Another black man was also punching the deceased. This was not the man whose hair was styled in corn rows. The appellant picked up a chair to hit the deceased, but Doig and another man each took hold of the chair's legs and pulled it down. The fight was "fairly brutal"; like a form of kick boxing. Towards the end, the appellant threw the deceased against the wall and "king-hit" him. He then went to hit him again, but the blow missed. A further punch connected. After this, either as the result of a punch or a push, Doig saw the deceased "literally flying through the window".
Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
HEYDON J
The English legislation was enacted after the decision in R v Myers[105]. In general, that case favours the appellant's position. Evidently, the legislature thought the decision to be unsatisfactory. R v Myers was an appeal by the accused against the reception of her own out-of-court statements. Those statements were tendered by her co-accused. R v Myers thus did not raise the issue in the present case. Indeed, in numerous respects it is factually distinguishable from the present case. And as Lord Hope of Craighead pointed out, the certified question did "not … sufficiently analyse the issues"[106]. The appellant made only two passing references to R v Myers. He took the Court to no part of what their Lordships said. The appellant did not demonstrate, or seek to demonstrate, its suitability as a precedent to be followed in Australia. [105][1998] AC 124.[106]R v Myers [1998] AC 124 at 146.Conclusion The present common law in relation to hearsay exceptions should not be changed in the respects the appellant advocated. LM's evidence was not admissible in the appellant's favour. The trial judge's direction was correct. The appeal should be dismissed.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ,
HEYDON J