Baker v The Queen
[2012] HCATrans 47
[2012] HCATrans 047
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M154 of 2011
B e t w e e n -
KHALID BAKER
Appellant
and
THE QUEEN
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 28 FEBRUARY 2012, AT 10.15 AM
Copyright in the High Court of Australia
MR M.J. CROUCHER, SC: May it please the Court, I appear with my learned friend, MR L.C. CARTER, on behalf of the appellant. (instructed by Doogue & O’Brien)
MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned, MR B.L. SONNET, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))
FRENCH CJ: Yes, Mr Croucher.
MR CROUCHER: Your Honours, as we see it, there are at least three questions on this appeal. The first is whether an exception to the rule against hearsay of the type that was spelt out by Justice Deane in Bannon’s Case and taken up by trial counsel in this case is to be recognised. The second question, as we see it, is whether, if such a principle exists, is it engaged on the facts in this case and third, if it is, whether it can be said that there is no substantial miscarriage of justice despite that error on those hypothesises.
May I deal first with the background to the matter. As I said at the outset, counsel at trial took the point, and this commences at page 491 of the appeal book – in fact, the matter was raised by the learned judge from line 3 onwards at page 491. His Honour starts with “The other matter is Bannon v R” and then he goes through what he understands to be the position spelt out in Bannon, namely, in summary, that evidence of admissions by a co‑accused is not evidence either for or against the appellant in this case, or any other case for that matter and he then invited submissions on the matter.
Counsel for Mr LM said that he agreed and that is the way his Honour should deal with it. The prosecutor, who was perhaps non‑committal about it, ultimately agreed in that view as well, but counsel for the appellant took the point, referred his Honour, as I say, to Justice Deane’s dictum in Bannon’s Case, particularly at pages 13 through to 15 of the judgment in Bannon (1995) 185 CLR 1. Counsel took, as I say, his Honour through that reasoning and said that it applied here and he sought to distinguish the problems that were said to bedevil the case in Bannon as being a good vehicle for raising the point.
His Honour ultimately ruled and that ruling, which is brief, commences at page 507 and goes over the page and his Honour, in substance, says that whilst he was mindful of the observations of Justice Deane, that he felt that he was bound by the law as it was perceived to be at that time and the evidence could not be regarded as admissible in the trial of the appellant. Consistent with that ruling, his Honour during his charge to the jury at page 533, for example, when dealing with the question of separate trials, says this starting at say line 1:
I told you earlier that these trials are separate and that there are is two trials being heard together for convenience. I told you that you must be careful not to allow convenience to override justice. The accused and the prosecution are entitled to have the case against each accused considered separately. I said you must consider the case against each accused in the light only of the evidence that applies to that accused, asking whether that evidence relating to that accused has satisfied you beyond reasonable doubt that he is guilty of the offence with which he is charged or with one of the alternatives. You note that what I said was: you must consider the case against each accused in the light only of the evidence which applies to that accused. This is because some of the evidence you have heard in this case is only relevant to the case against one accused. The evidence to which I am referring is the evidence of the alleged admissions by [LM]. The evidence concerning admissions by [LM] is only evidence in his case, it is not evidence in Mr Baker’s case. So when you separately consider Mr Baker’s case, you ignore the admissions allegedly made by [LM], they are not evidence in Mr Baker’s case.
Now, of course, the admissions to which his Honour was referring were those made in the record of interview and those made on the evidence to other people in the car after the incident. The record of interview, of course, was a taped interview conducted the day after the incident with a police officer under caution, having been advised of legal rights and the like. That interview and the evidence from the other witnesses about the admission that he made was lead by the Crown in proof off its case against LM and at various points throughout the charge his Honour points out that the Crown are indeed relying on that evidence in proof of the case against LM. For example, at page 535 his Honour there is summarising the argument put by Mr Stuart on behalf of LM and the Crown – or Mr Rose on behalf of the Crown, and just perhaps taking up the reading at about line 18 on 535:
In this case Mr Stuart has submitted that when he said in his record of interview that the pushed, he was not admitting to any unlawful act because he said he pushed him after the guy had hit him. Mr Stuart has also submitted to you that the assumption his client had made that his push caused Mr Snowball to go through the window was simply wrong. The Crown says that in the record of interview [LM] admits his involvement and that, based upon that, you can conclude that he (to use [the Prosecutor’s] words) had a hand in Mr Snowball going through the window. The Crown says you can at least rely on that.
There were similar remarks made elsewhere in his Honour’s charge. For example, at page 577, line 16 through to 20, it is said by his Honour:
You will recall the only thing the Crown says one can take from the record of interview is that [LM] had a hand in Mr Snowball going through the window. They do not accept otherwise what is said.
On page 614 at line 26 through to line 29:
In substance, the Crown says the only thing that is reliable in the record of interview is that [LM] had a hand in Mr Snowball going through the window.
So there are some examples of that. Now, our submission on the, if you like, preliminary question is that the exception to hearsay that Justice Deane spoke of in Bannon, which, of course, his Honour did not have to decide in the circumstances of the case, is the type of exception that this Court should adopt in this case. His Honour Justice Deane in Bannon at page 13 of the report, having spoken of the difficulties that sometimes emerge in joint trials, at about three‑quarters of the way down the page says this about halfway through the line:
The same cannot, however, be said of circumstances where, on a joint trial, the Crown leads evidence against one accused but, on the ground that is it not led or admissible against the other accused, seeks to preclude the other accused from relying upon it to support his or her denial of guilt. Indeed, particularly in the context of the criminal standard of proof, one can envisage circumstances in which an ordinary juror would be conscious of strong considerations of fairness and common sense militating against a strict observance of a trial judge’s direction to the effect that the other accused was not entitled to rely on such evidence for the reason that it was not evidence in his or her trial.
But, of course, what has happened in this case is his Honour has expressly directed the jury you must not use this evidence either for or against the appellant in this case. Then his Honour goes through a couple of examples to illustrate what his Honour concludes is some arguably illogical and unfair conclusions that would follow. He deals with those at the foot of 13 and the top of 14. Then in the second last paragraph on page 14 his Honour, having set those out, says:
It is no answer to the above examples to say that, in the particular circumstances postulated, there should not be a joint trial or that, in the case of the second example, an appellate court would intervene in the event that A and B were both convicted of a crime of which the Crown conceded only one could be guilty. The point of the examples is simply to demonstrate that, in circumstances where the Crown has seen fit to proceed against two accused persons jointly and to lead particular evidence on the joint trial against one only of them, a situation can arguably arise in which ordinary considerations of fairness would be affronted and the administration of criminal justice mocked if the other accused were precluded from relying upon that evidence if it supported his or her innocence or raised a doubt about his or her guilt.
Over the page at page 15, his Honour in the second paragraph says:
The central prescript of our criminal law is that no person should be convicted of a crime unless his or her guilt is established beyond reasonable doubt after a fair trial according to law. The specific content of the requirement of a fair trial may vary with changing circumstances, including contemporary standards and perceptions.
and his Honour cites an authority –
When it appears that judge-made rules of evidence or procedure conflict, or are liable to conflict, with the basic requirements of fairness, it is a function of a final appellate court, such as this Court, to address the question whether those rules should be altered or adjusted to avoid such conflict.
He then goes on:
Obviously, the circumstances of a particular case may be such that a co-accused should only be permitted to rely on particular evidence which is not led against him or her if he or she accepts that other material providing the context of that particular evidence, or evidence led in rebuttal of it, be also treated as evidence in his or her trial. Subject to that safeguard, however, it appears to me to be strongly arguable that the basic requirement of fairness dictates that, in circumstances where the Crown has seen fit to bring a person (the first accused) to a joint trial with another accused and to place before the jury material which is tendered only against that other accused but which is supportive of the innocence of the first accused, the trial judge have a discretion to direct that that material, even though otherwise inadmissible in the trial of the first accused, be evidence in that trial at the instance of the first accused if, in all the circumstances of the case, the trial judge considers that fairness to the first accused and the interests of the administration of justice support the conclusion that such a direction be given.
We say that the dictum his Honour spelt out there is something that would be supportable as a matter of principle, good policy, if that is the right way of putting it, and fairness in the running of criminal trials at common law and we give a series of reasons, any one of which is enough to justify that conclusion, in our respectful submission. First, in our submission, the rationale underpinning the admissibility of confessions or admissions against an accused in exception to the hearsay rule is the general presumption that those who make admissions against interest are likely to be doing so because it is true.
Well, so too when a person makes an admission that he or she is responsible for a crime or some part of it in circumstances, particularly where the co‑accused disputes that he had any part of it and, what is more, as in this case, which we will take your Honours to later, the co‑accused says in this interview when asked about this appellant that he was not aware that he was present and did not see him doing anything wrong in this regard in this case, that that can be taken to be a reliable admission that indeed the appellant did not do anything wrong.
FRENCH CJ: Can I ask you about that word “reliable”. Are you attaching to your criterion of admissibility some test of reliability or do you simply say if it is an admission, it attracts a sort of generic reliability that does not require inquiry into the ambiguity of the particular statement and so forth?
MR CROUCHER: Your Honour, we say the latter is sufficient and, indeed, as we understood Justice Deane, he does not seem to be pinning it to any principle of reliability. His Honour seems to be saying as a matter of fairness that is what should be done. But at the same time, to be fair to his Honour, he is saying it in a context where the Crown are leading this evidence against an accused person which, it seems to us, gives it a fairly, if not guarantee, a pretty strong argument that is reliable in the first place. So perhaps they are two sides of the same coin or perhaps it is because it goes to the rationale for the admission of evidence of admissions or confessions in the first place against an accused, but either way, when – it is a particular narrow species of an exception to the hearsay rule.
If I can jump ahead for a moment, there is often a lot of criticism, although that criticism is said by the likes of Wigmore and others to be unfounded, against carving out a so‑called third party exception, a third party confession exception. Why? Because of the risk that of course people might make up deathbed confessions in order to help out other people and it is very hard to test them and this sort of thing. But that does not happen, or it has got much less risk of happening in circumstances where the Crown choose to lead in evidence, in inculpation of one accused, evidence which, as it happens, tends to exculpate the other accused in circumstances as well where those admissions have been made to a person in authority when the person knows that he or she is at risk of inculpation for, or charging some criminal offence, in this case with having received advice previously by lawyers and so on.
FRENCH CJ: Are these all criteria of admissibility?
MR CROUCHER: Not necessarily. I suppose I am shifting perhaps from the general to the particular in that submission I have just made, but it is enough at the base, in our submission, to say that because the Crown is seeking to lead it against one accused, that is enough to guarantee admissibility in favour of the other, insofar as it is exculpatory of the other.
CRENNAN J: But his Honour seems to have focused on whether the evidence is supportive of the innocence of the first accused and it raises an issue about what is meant by supportive, which I think feeds into the reliability question of the Chief Justice. I mean, one problem may be that admission in relation to a push and an assumption that was made in relation to the push are, on one view, quite ambiguous in relation to the position of the other accused.
MR CROUCHER: I understand that argument, your Honour, but can I say two things about it. First, his Honour Justice Deane, at the passage I read from page 14 of his judgment, towards the end of the page, spoke of the administration of justice being mocked:
if the other accused were precluded from relying upon that evidence if it supported his or her innocence or raised a doubt about his or her guilt.
Secondly, his Honour, when explaining this exception, emphasises the importance of the criminal standard of proof and the onus of proof. Third, even if it be capable of being said to be, well, it might not be if in the hands of the Crown be capable of being proved beyond reasonable doubt to be an admission against interest, having regard to the burden and standard of proof and, in particular, when an accused person is accused, the one who is seeking to rely on the admission to his advantage, need only raise a reasonable doubt, then that is all that needs to be achieved by reason of the admission of the evidence. But to go back a step further, it is our submission that it is very important in this case that the Crown did lead the evidence against LM, both the interview and the other evidence, relied on it and we say it was open to use it at least as an admission of having pushed the deceased at the relevant time and causing him to go through the window. So for our purposes that is enough.
CRENNAN J: That is running two alleged admissions together; the one about the push and then you said, and caused the deceased to go through the window.
MR CROUCHER: No doubt there is an inference that has got to be drawn there and, indeed, that was the inference that the Crown was seeking to have the jury draw beyond reasonable doubt. Of course, the verdict is very likely to mean that the jury were not satisfied beyond reasonable doubt that that inference could be drawn – that second inference could be drawn – or even perhaps the first one, that he pushed him anywhere near the window, who knows, but that does not mean that it is of no use in this appellant’s hands because the Crown are there seeking to prove beyond reasonable doubt that admission at some level in order to use it against LM, but if it creates a doubt as to whether or not the appellant was responsible for the man going through the window, that is all it requires from his point of view, and this in circumstances where it is not as if there was no other evidence.
There was the evidence, challenged though it was by counsel for LM, of Messrs Asfer and Masonga who gave version consistent with the admission that the Crown said at trial that LM made, namely, causing the deceased to go through the window. We say, had the co‑accused’s admission been available in the trial of the appellant, then that is something very powerful in support of those witnesses and vice versa, those witnesses supporting that admission which in turn tends to exculpate the appellant. So that is how we say it fits together.
BELL J: Can I come back to the scope of the exception for which you contend. The passages that you have taken us to in Bannon are concerned with notions of fairness in the context of a joint trial.
MR CROUCHER: That is true. Well, that is as I read them, your Honour.
BELL J: Why, if there is to be such an exception, should it be based on considerations of that character? Why would it be different if an order had been made for separation, the trials had proceeded with LM being tried first and then being called either by the Crown or by the defence in your client’s trial and let us say LM does not agree that he made such a statement, he gives a different account, one might cross‑examine him as to credit respecting the contents of the statement, but your exception would not extend to getting it in in that circumstance?
MR CROUCHER: Well, it depends how far the Court was prepared to go. We do not need to go that far for the purposes of this case, obviously.
BELL J: But it depends what underlies the exception. If it is fairness at a joint trial, then that might throw up considerations of the very concept of fairness if it be accepted that the exception does not extend to the tender of a co‑accused confessional statement other than at a joint trial.
MR CROUCHER: Well, I do not want to be misunderstood, your Honour. I am not suggesting that it could not go to that. I am simply saying for the purpose of this case that is all we need to – well, my client needs to have it determined in his favour. Obviously your Honours have broader considerations to consider. I suppose, to take up the fairness rationale further, if the Crown had, as your Honour postulated, given there were two separate trials and LM’s trial was conducted first, and the Crown led in proof of the case against him the same evidence that they led in this trial, then if this principle that Justice Deane spoke of exists, then it would unthinkable, in our respectful submission, that the Crown would not be compelled to lead that same evidence in the trial of the co‑accused, the appellant, the separate trial, certainly if that is what the appellant wanted.
HAYNE J: What? Lead the evidence of the out of court statement by the other accused?
MR CROUCHER: Yes.
HAYNE J: How?
MR CROUCHER: Well, by calling a policeman and playing the interview. The other two witnesses were there, they would be called again in the same trial, they could be asked again. Indeed, this very type of thing is what happened in Myers, one of the cases in the last of authorities, in the United Kingdom where there was a joint trial into this very thing. There was a joint trial where counsel for one defendant, if you like, thought the Crown should lead the evidence that the Crown were not going to lead of the co‑accused admissions and it was said by the House of Lords in the appeal by the person who had made the admission that his or her trial was somehow unfair, that, no, of course that is not, but that the Court should have before – the trier of fact should before it relevant evidence of that type.
HEYDON J: That is not what Justice Hayne was asking you about. He was attracted, I think, by your proposition that the Crown had an obligation to tender this evidence. Myers is a case where the defence tendered the evidence.
MR CROUCHER: Yes, I understand, and there was said to be no miscarriage to the party who had made the admission in the circumstances. I understand your Honour’s point about the distinction. Perhaps if I could put it another way. It seems, I said before, unthinkable. Well, it would seem terribly unfair, if nothing else, that if the Crown were to deny the appellant in that second trial the benefit of the jury hearing that there was evidence that a person the Crown say was in some way responsible for the crime actually admitted, at least in part, responsibility for pushing the man and perhaps causing him to go through the window.
HAYNE J: Does this not direct rather closer attention to the notion of why you say it is fair at a joint trial that the statement of the co‑accused should be available to your client? What is the unfairness? You say, look, it goes in aid of the general proposition that there may be a doubt. It goes to support the notion of doubt.
MR CROUCHER: It could go higher than that, your Honour, depending on what the jury thinks of it, but that will do, your Honour, yes.
HAYNE J: But is this not to strike at the root of what is essentially an accusatorial process, namely, prosecution mounts its case, it advances all of the evidence that it should in accordance with Apostilides, defence has its opportunity to respond as he chooses. Now, that evidence either proves or does not prove the case beyond reasonable doubt. What is an out of court statement by the co‑accused going to say in relation to that process?
MR CROUCHER: In a jury’s mind it is obviously relevant. The only reason that it is not admitted is because of the rule against hearsay thus far. We say that if it needs to be said, the fact that the Crown (a) choose to rely on it and (b) do so in circumstances where they have the burden of proof and the standard of proof being beyond reasonable doubt, so they have to satisfy that trial before the other man’s trial of that high standard of proof that the admission is sufficiently reliable, I suppose, is one way of putting it, to an element or part of an element of a crime and if at the same time that same evidence tends to suggest that the co‑accused did not commit the crime or at least that part of it which the Crown say he might have done, then a jury should not be denied hearing that.
HAYNE J: A point is why not; because – take this case. You have a melee, a man goes out the window, there are several people there. There is obviously a question at trial about who pushed the deceased at what point and why. All of these possibilities are on the table for the jury to consider. Either the Crown proves its case against the particular accused or it does not.
MR CROUCHER: Yes, but in that, whether it be a joint trial or, on Justice Bell’s example, two separate trials in the second of those, and the jury is either denied hearing, in the second example, or, in the first example, not denied hearing of it but told you cannot use it, which is to say the same thing, then they are being denied relevant evidence which goes to the question of whether or not the accused who is being tried is guilty of the crime.
BELL J: When you speak in terms of the jury being deprived of relevant evidence, what distinction do you draw in the circumstance that the Crown is in possession of material that another person has confessed to the offence? Why is the jury to be deprived of the third party confession?
MR CROUCHER: I say they should not be, but I was rather assuming ‑ ‑ ‑
BELL J: I am trying to understand the basis of the exception. You commenced the argument by suggesting it was a narrow exception, as I understood it, informed by considerations of fairness in the context of a joint trial. Now I think we have moved to some more general contention that embraces third party confessions in the context of a notion that the jury should not be deprived of evidence of which the Crown has some notice.
MR CROUCHER: Let us be clear, your Honour. If it needs to go as far as third party confessions to make good this point, then so be it as well. It is just that, I suppose – well, there is a distinction drawn, at least in the authorities that discuss these things in the academic commentary, between the potential unreliability, I suppose, of a third party confession – and by that I mean someone unconnected with the case coming up and saying “I am responsible” – and a case where the Crown by definition saying this evidence is reliable because they are leading it in their case. Without objection by counsel for LM, the Crown knowing that they have to prove beyond reasonable doubt that admission in order to make it of any use in their case, it gives it, in these circumstances and generally, a greater degree of reliability and if reliability is said to be a touchstone or at least one of the considerations, then it is made out, we say.
GUMMOW J: How would this play out under the Evidence Act (Cth)?
MR CROUCHER: Under the Evidence Act (Cth) probably section 65 would allow evidence of this type to be led. We have set it out in our submissions. In fact, in Bannon itself Justice McHugh referred to section 65 in the Commonwealth Act, which, of course, now has been copied in substantially the same terms in quite a few other jurisdictions. At page 41 of the judgment his Honour speaks about section 65, but I should take your Honours to it in particular. It is set out, or at least in part, in our annotated submissions at paragraph 50. The subsections thought to be probably the most apposite and, I think, the Crown agrees with this ‑ ‑ ‑
GUMMOW J: Subsection (2)?
MR CROUCHER: Subsection (2), yes:
The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation––
(a)was made under a duty to make that representation or to make representations of that kind; or
(b) –
which is another one that it is possible –
was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c)was made in circumstances that make it highly probably that the representation is reliable; or
(d)was –
which is the one that I think is probably thought most apposite –
(i)against the interests of the person who made it at the time it was made; and
(ii)made in circumstances that make it likely that the representation is reliable.
BELL J: Is it not more subsection (8), which seems very broad?
MR CROUCHER: Yes.
BELL J: You might have considerable debate about whether things said by a suspect to a police officer are necessarily reliable, whereas subsection (8) seems to be a very open gate.
MR CROUCHER: Your Honour, whenever I run that argument it fails from a defence point of view, but I understand your Honour’s point. In paragraph 41 of our written submissions we mention that the rationale for the introduction of section 65(8) was “to minimize the conviction of the innocent” and that came from the 1985 Interim Report of the Australian Law Reform Commission.
BELL J: Under 65(8) you would be able to get in a third party confession regardless of its reliability.
MR CROUCHER: No doubt about it, yes. Yes, you would. Indeed, one of the reasons we say that the common law should recognise at least the narrow exception that we plumb for in this case, or a broad one if need be, is to keep in step with the legislative developments that have occurred in this country. In fact, at the time that Bannon was decided, Justice McHugh arguably – or to put the opposite view, his Honour, at page 41in the second paragraph, said:
Plainly, adoption of the Canadian principle would have the potential to alter the practical operation of the law of evidence in the day to day administration of justice. For this reason, the respondent argues that, if any further exception to the hearsay rule is to become part of the law of Australia, it should come about as the result of legislative reform, rather than judicial development. To some extent this has already occurred. On the recommendation of the Australian Law Reform Commission, the federal Parliament has enacted the Evidence Act 1995 (Cth) which provides in s 65 that third party confessions exculpatory of the accused are admissible provided certain preconditions are met. So far only New South Wales has adopted comparable legislation. However, it is conceivable that other States will adopt some, if not all, of the provisions of the Commonwealth Act. The recent legislative activity in this field provides a sound reason for this Court proceeding cautiously when invited to alter the settled rule against hearsay evidence. If any change is to come about as a result of judicial law‑making, it should only occur after the Court has had the benefit of full argument from counsel representing the States and the Commonwealth.
Since then, of course, the Evidence Act has been adopted in Victoria, which now applies if there were a retrial in this case, Tasmania. It is about to adopted in the Northern Territory, I think, in a month or two, but the common law States that are left are Queensland, Western Australia and South Australia. Queensland, of course, as you will have seen from the submissions, has carved out its own exception despite what this Court might have said or did not say in Bannon.
GUMMOW J: Section 65(8) still has attached to it the notice requirement, does it?
MR CROUCHER: Notice, yes, I think that is right. Actually, I am not certain of that though, your Honour, but I think there would be. I will have to get back to you on that, your Honour. Yes, we believe it does, your Honour.
GUMMOW J: You would not suggest – well, as I understand it, you suggest common law should inform 65(8) but without the notice of requirement of 67(1), is that right?
MR CROUCHER: Yes. But, as I say, your Honour, we do not say you have to go that far in this case because – well, as we see it, maybe we have misunderstood it, but Justice Deane was making a particular point, whether it be called fairness or a combination ‑ ‑ ‑
GUMMOW J: Yes, but he did not deal with the point Justice McHugh was making in that paragraph at page 41.
MR CROUCHER: That is true, but things have changed now. The balance has gone the other way, your Honour. There are only these few States left and ‑ ‑ ‑
HEYDON J: But millions of people live in them.
MR CROUCHER: Pardon, your Honour?
HEYDON J: Millions of people live in them and they have three governments who, strangely enough, think it is their own concern what particular rules of evidentiary law and procedure they adopt.
MR CROUCHER: I understand that, your Honour. But the unfairness about which Justice Deane spoke is a grave one, in our submission. If, and we say it would have or very likely could have made a difference in this case, then it is something that really a jury ought to hear.
HEYDON J: Section 65(8) would not talk to you, would it, because your client – your argument would be this, would it? You are not relying on the prosecution tender but if the law had been in conformity with 65(8), your client could have tendered the evidence.
MR CROUCHER: Yes. Or could have in that trial, the Crown having led it, pointed to it, it seems.
HEYDON J: Well, if we are making new exceptions to the hearsay rule, we are not bound by anything very much, I suppose, but it would not be exactly the same as 65(8).
MR CROUCHER: I accept that, your Honour.
HEYDON J: Nor 65(2).
MR CROUCHER: Indeed, that is right. Now, as we pointed out in submissions, Queensland seems to have an exception of this type recognised already ‑ ‑ ‑
FRENCH CJ: I suppose one consequence of this is that State courts exercising federal criminal jurisdiction would be applying either the common law rule as it presently exists or uniform Evidence Act rule if that uniform Evidence Act rule has been adopted in that State. In other words, you get a difference in – I am not sure that that impacts on anything.
MR CROUCHER: There is just one passage from Zullo, which is one of the Queensland cases which we have mentioned in submissions. Zullo is reported in [1993] 1 Qd R 572 at page 574. Now, that was a third party confession, but the way it was characterised was that evidence was:
to be considered by the jury for what they thought it was worth, and may very well have inclined the jury towards a “not guilty” verdict, even if they were by no means convinced that it was truthful.
That is to take up your Honour Justice Crennan’s point before about when you have regard to the burden of standard of proof and in contradistinction to the Crown who must in order to get the benefit of that evidence to inculpate the accused who has made the admission has to be proved to that very high standard. Not so for an accused or a co‑accused who is relying on that as to whether it creates a doubt or whether it is something higher. It does not really matter. All it has to do is assist in creating a doubt or create a doubt in and of itself, we say – or be capable of doing so.
Now, it is put against us on the second question that there is really no miscarriage here if such a principle exists because, well, LM was acquitted, the Crown case was that it was either aiding and abetting or acting in concert and things of that nature, but the acquittal actually has the opposite effect in this case. Given the way the evidence fell, which was really, broadly speaking, two competing versions, namely, the version which had the appellant as being responsible for punching or pushing the deceased at the relevant time and then his falling through the window, that is one version, and the other version which came – and that came through witnesses Doig and others – the alternative version which was supported by the witnesses Masonga and Asfer was that, no, it was LM who was in.....with or fighting with or near to the deceased immediately prior to his going through the window and, indeed, that the appellant was either being restrained by someone else nearby at the time or was actually fighting someone else on the other version, but either way there were these two polarised views.
That the jury acquitted LM and convicted the appellant must mean that the jury convicted the appellant on the basis that he was the principal who caused the man to go through the window; it cannot be any other way. In those circumstances, and including the circumstance that he was disputing that fact and relying on Masonga and Asfer, the evidence was very, very important.
KIEFEL J: Is the probative value of the evidence then rather more as a representation that he pushed the victim rather than really as an admission, because as an admission it has some difficulty in terms of its certainty of what is ‑ ‑ ‑
MR CROUCHER: It depends what you mean when you say admissions, but I accept what your Honour says about ‑ ‑ ‑
KIEFEL J: Admission of more than just a push. An admission that what he did had the consequences for the victim that they did.
MR CROUCHER: Yes, well, it is fair to say that he seemed to be assuming on his own account that his push resulted in the man going through the window. He said as much more than once. But that admission, or utterances to use a neutral term, combined with the evidence of Masonga and Asfer ‑ ‑ ‑
KIEFEL J: That is what I am asking; is that where its true value lies in affecting the ‑ ‑ ‑
MR CROUCHER: Yes, and it goes both ways. It does. See, they were trenchantly criticised, particularly by counsel for LM, not surprisingly, and it supported their version of things and, equally, their version of things supported that the utterance should be read as an admission that he actually did cause the man to go through the window, because – I think I might have said this to your Honour in particular on a special leave application, a lot of back pedalling goes on in this interview. He certainly gives an account which is effectively accident, saying, “I did not mean, of course, for him to go through the window or anything like that, and I was only just reacting to someone who had just punched me.” That is all fine, that does not change the point.
KIEFEL J: Was the evidence of the co‑accused that he had pushed the victim inconsistent with the evidence of Doig and Acaro?
MR CROUCHER: No, not necessarily because one of them said he did not see the last, all he could see was them together near – the deceased with his back to the window, the co‑accused with his face to the window and face therefore to the deceased and then he heard a crash. He did not actually see the last bit, but it was open to infer that that is exactly what Mr LM was admitting to. As I say, there was an element of back pedalling. He was trying to explain, well, maybe he stumbled and he spoke of bottles being on – this is LM I mean – bottles being around. This was not a proper organised party with rubbish bins and so on. That is the way he explained that.
It is also very significant that he – and this is said not to be the case, as I understand it, by the Crown, but it is in fact the case that he is quizzed about Mr Baker, the appellant, and he says, “I did not see him there.” So it exonerates him to that extent, or has him away from the window most importantly, and he is very coy about naming another person, one of his friends, who was obviously involved in fighting and the like. Very powerful. But counsel was fighting with one hand tied behind his back because he was not allowed to make any of these points. He was not allowed to develop the argument that contrary to the submission being made by counsel for [LM], you should rely on Messrs Asfer and Masonga and what comes out of the co‑accused’s own mouth. That is not to say that he is guilty of the crime of murder or manslaughter himself. He may have other defences that attach to his admission, namely, that it was an accident or the like, but insofar as determining who is responsible for his going through the window – the deceased going through the window – that was very, very relevant and powerful evidence.
BELL J: To come back to the matter that Justice Kiefel raised with you, if you look at the evidence of the two witnesses whom, it must be presumed, the jury accepted in preference to Asfer and Masonga, for my part it is difficult to see any passage in LM’s interview that is inconsistent with an acceptance of their account or that would cast doubt on it.
MR CROUCHER: On the ones that they accepted?
BELL J: Yes.
MR CROUCHER: It must be because one of them has the appellant by himself fighting with the deceased and laying a punch or a push following which the man falls to his death.
BELL J: But does that gainsay that at some stage in this course of events LM had a relatively minor altercation involving pushing the deceased and then he proceeded to leave the premises?
MR CROUCHER: Not necessarily. With respect, your Honour is right, that is a possible view, but, again, defence counsel is not allowed to argue about all these things, that is the point.
BELL J: And, again, coming back to the witnesses Asfer and Masonga, it is rather difficult to reconcile an acceptance of the account given by LM with anything either of those witnesses say because they are describing events very differently, are they not?
MR CROUCHER: Well, not really. I mean, experience tells you that in any criminal trial when there is a melee, if you have 10 witnesses you will have 10 different versions for a start and it is fair to say as well that those lined up, from the Crown’s point of view on their side, did not give the same version. They all gave variants on a theme, some quite different from others, and the Crown, as they are entitled to do and as the judge told the jury are entitled to accept or reject in whole or in part any witness. That is the problem for the jury.
But there was enough, in our respectful submission, in the essence of what Masonga and Asfer were saying, namely, that they would – and they knew LM, that he was the one who was immediately either pushing or fighting or near him immediately prior to his going out the window and that the appellant was either being restrained by one of them or involved in a stoush with someone else completely unrelated to all of this. So that left open the support both ways, in our submission, for – meaning the evidence or the admissions of LM supporting Asfer and Masonga in that regard and they in turn supporting the admission.
Now, one thing I have not mentioned so far is the admissions in the car. They, I suppose it is fair to say, are no more than supported by inference of the same admission that he makes in the interview and if there be a distinction between evidence that is of an admission made to a person in authority as opposed to something that is perhaps more disputable – you have got a taped interview compared with something that was disputed by counsel for LM, so it might be that that falls into a different category, but we say it certainly adds to the weight to be accorded to, and should have been allowed to add to the weight according to the admission in the interview and vice a versa and also, as I say again, to the evidence of Asfer and Masonga.
I should point out as well, one of the things that is not in the materials is this. Is that on the one hand, when his Honour was considering his ruling on this issue, he said, “I must also take into account the interests of LM”, perhaps in the same way that was rejected ‑ ‑ ‑
FRENCH CJ: The notion of being sandwiched between two prosecutors.
MR CROUCHER: Indeed, but the reality, your Honours, was quite the opposite. It was, whilst formally correct to say, sandwiched between because the prosecution go first LM’s cross‑examination and then the appellant’s. It was the opposite. He had two prosecutors against him, the appellant, and, indeed, as I say, what is not in the materials is that counsel later on applied for a separate trial during the final address of counsel for LM because he thought he was not getting a fair go. That is not the appeal point obviously, the ground is different, but it just illustrates how difficult it was, as I say, fighting in a sense with one hand tied behind his back.
Now, the third question, as I say, is the question of whether the proviso is applicable. I am not frankly quite sure about the Crown’s submissions on this, whether they are saying there is simply no miscarriage or error in the first place in assuming it to be admissible or whether they are saying the proviso should be applied, but in the event that they are seeking to rely on the proviso, well, for the reasons I have already given about the importance of this material in the defence of the appellant, particularly in circumstances where the verdicts came back as they did, there is just no room to apply the proviso here.
HEYDON J: There is not a word to suggest that there is a proviso. A proviso involves a close analysis of the evidence.
MR CROUCHER: Well, I understand that your Honour is right about that, so I will not go any further with that. We otherwise rely on what we have written and unless there are any questions, I will sit down.
FRENCH CJ: Thank you, Mr Croucher. Yes, Mr Silbert.
MR SILBERT: If the Court pleases. I came to eulogise Justice McHugh, but I do not have to do so. My friend has drawn the Court’s attention to his judgment, particularly at page 41, so the two countervailing views on the extension of the exception of the hearsay rule arise from Bannon. It is ironic in one sense that we are revisiting Bannon in a situation where there are now only three States in the Commonwealth left applying the common law of evidence, although Queensland appears to have taken it on itself to, I suppose, ignore Bannon in one sense. I do not know how charitably I can put it. But in the case of R v Martin and, as far as any practical value goes with development of the common law, reported at 134 A Crim R 568, in the judgment of the Court of Appeal Justice McPherson at page 575, just past 20:
At the trial, counsel for Klinge submitted that his client was entitled to have Sambo’s admission on that occasion left to the jury as a statement in favour of his client. As far as Klinge was concerned, it was an out of court statement that was hearsay, and it was on that ground that it was ruled inadmissible in favour of Klinge.
Hearsay statements claiming responsibility for a killing have been held admissible in Queensland in favour of some other person who is charged with the offence in question despite some cogent authority to the contrary in other jurisdictions. Recently, in R v K; Ex parte Attorney-General (Qld) (2002) 132 A Crim R 108 at [16], we held that courts in Queensland were bound by that line of authority, including R v Zullo [1993] 2 Qd R 572 at 574, in this State. At the time of that decision, I was not aware of the judgment of the High Court in Bannon v The Queen (1995) 185 CLR 1; 83 A Crim R 370. Having now read the report of that case, I am not persuaded that what their Honours said in their reasons is necessarily inconsistent with the Queensland line of authority referred to. It therefore follows that, until overruled by the High Court, that authority continues to be binding in Queensland.
My learned junior can take responsibility for finding the Queensland line of authorities which he supplied to my learned friends prior to the special leave application.
KIEFEL J: The Queensland line of authority really commences with Zullo’s Case.
MR SILBERT: Yes, which is pre‑Bannon.
KIEFEL J: Which is [1993] 2 Qd R 572.
MR SILBERT: Yes, it does, your Honour.
KIEFEL J: The view of the Court seems to be that expressed at 574 at about lines 35 to 40 stated rather succinctly, but one takes it that their Honours considered it was a matter for the jury because it was probative of innocence.
MR SILBERT: Yes, your Honour.
KIEFEL J: That really is the dividing line, is it not? It is the particular quality of the evidence – the particular evidence, and that is why I think Justice McPherson is saying there is not really an inconsistency between the approach taken in Zullo and Bannon if you look at the particular evidence and what it might have said in the particular case.
MR SILBERT: It is, your Honour, and I was going to take me to the last point in my three‑page outline that the exception to the hearsay rule traditionally are admissions against interest and that is the basis on which confessions are traditionally admitted. There seems to have developed a practice throughout the Commonwealth that records of interview are admissible whether they contain confessions in a strict sense or mild admissions or even exculpatory material. It would seem that there is a de facto exception created in relation to records of interview. Quite how that has come about I do not know, but any prosecutor who refused to lead a record of interview from an accused I think would probably be regarded as derelict in his duty.
HEYDON J: I just cannot understand why though. I mean, the practical scope of the problem may be slight because any lengthy record of interview is actually likely to contain some admissions, life being what it is, but if you take a purely exculpatory record of interview and if it is received as evidence of the truth of what was said, it is just completely inconsistent with the received law of evidence, and even if it is received on some lesser basis, there are English cases that hold that, but they simply seem to be wrong.
MR SILBERT: I do not quibble with your Honour. I have never understood it, but I have always accepted it and, as I say, I think any prosecutor in any State would lead a record of interview ‑ ‑ ‑
HEYDON J: It takes hours to listen to them.
MR SILBERT: Well, it does. It comes back qualitatively to Justice Kiefel’s point. A confession or an admission, sometimes a very minor admission, and the quality of the admissions in this particular case and, indeed, in Bannon, they are not confessions to essentially the elements of the crime or the elements of complicity, they are admissions against interests that can be used in building a case against an accused, but in a strict sense they are not confessions. They are not admissions of responsibility. This appellant, his record of interview is exculpatory to a large degree. He seeks to exculpate himself, but there are statements there, “I did push him but I was two metres away from the window, so he could not have gone through the window. I did not see him go through the window. When I went down the stairs, he was on the ground floor, I assumed he went through the window.” Clearly, that is not a confession to murder. It, on one view, contains admissions and that requires some sort of qualitative assessment as to the value of those admissions.
KIEFEL J: But the statement that he pushed the deceased and was in a situation close to the window may have been important for a jury in terms of evaluating the other evidence of the other witnesses.
MR SILBERT: Absolutely, your Honour. But I am just agreeing with your Honour that there are qualitative assessments to be made in relation to admissions against interest because you go from a confession on the far right to a mild admission on the left and that needs some sort of qualitative assessment by a jury as to its value. The courts in England, I think, back as far as Myers in 1965, I do not know whether all English courts – cases are styled Myers because the most recent House of Lords decision in 1998 is also R v Myer ‑ ‑ ‑
HEYDON J: It is a well‑known South London family.
HAYNE J: Businessman.
MR SILBERT: The House of Lords there formulated a view that any further exceptions to the hearsay rule were for the legislature. It seems that this Court in Bannon more or less followed a similar philosophy, although, again, an analysis of the admissions in Bannon made it strictly unnecessary for the court to decide the point as to whether a further exception is warranted, but technically and philosophically there cannot be a difference between a third party confession from entirely outside, a la Van Beelen, which everyone is familiar with in South Australia, or an admission in a joint trial. There is either an exception or there is not and, effectively, when courts talk of exceptions, they speak in terms of necessity and reliability which seems to be the underpinning of the Evidence Act (Cth). There seems to be an insistence that whenever an exception is discussed, not that one has been created for many years, there seems to be a debate as to whether there is necessity in the making of the statement and reliability in the statement because, of course, it is untested.
Those two criteria are designed, it is submitted, to provide some sort of safety valve for any exception likely to be created to the hearsay rule. It is submitted in this particular case – and I can keep these submissions fairly confined because I rely on what we have written – there is no necessity to the extent that the admissions, such as they were, by the appellant were clearly self‑serving and in a large degree exculpatory. They were inherently improbable and unreliable. In a number of instances, and I do not need to take the Court to them, the appellant refused to answer the question or said that he would not name the person. So, they were, in my submission, entirely self‑serving and designed by LM to exculpate himself. That can be demonstrated by looking at questions 352 at page 483 of the appeal book.
FRENCH CJ: Does that work on the premise that the hypothesis, contrary to your principal submission, that there is an exception conditioned on the reliability of the evidence, but that the Court can make judgments about the degree of reliability of the evidence in determining admissibility?
MR SILBERT: Well, in my submission, yes, your Honour. Looking at the nature, it needs a qualitative assessment of what sort of admissions are made and, every instance, short of an absolute confession to the crime, there has to be some evaluation of the worth of what is said.
FRENCH CJ: But your primary argument is that even if LM had said, yes, I pushed him and he went through the window, that that is no more admissible than the inferential statements which are contained in this ‑ ‑ ‑
MR SILBERT: It is, your Honour, although there is a threshold primary argument and that is, it is too late for further exceptions to the hearsay rule.
FRENCH CJ: Yes, I appreciate that.
MR SILBERT: Yes. So the admissions, it is submitted, are ambiguous and inherently unreliable and looking at questions and answers – I probably should just read them; questions 29 at page 444 of the appeal book, 132 at 455, question 215 at page 465, question 247 at 469, question 248 at page 469, 366 at page 485 and 367 at 485, and they are just a selection in relation to quality of admissions, qualitative assessment and reliability. So going beyond the threshold points and the primary submissions, the submission is that it is simply not engaged on the facts even if this were a suitable vehicle for the creation of a further exception to the hearsay rule and on the facts it is simply not engaged. Going to my learned friend’s third point, as he articulated, no miscarriage of justice occurred as a result of the conduct of this trial.
Other than that, we rely on our submissions. I am happy to take any questions the Court might have of me, but I think we have set out fairly comprehensively and our response, our reply, to my friend’s contentions, if the Court pleases.
FRENCH CJ: Thank you, Mr Silbert. Mr Croucher.
MR CROUCHER: Your Honours, just in reply. In Myers, the 1997 judgment, in the speech of Lord Slynn at page 136 from about D down to G, there is discussion of the rationale there. His Lordship says:
It seems to me that there is force in that comment despite Lord Bridge’s anxiety that if confessions by third parties were admitted it would only be too easy for fabricated confessions to produce unjustified acquittals. Accepting Lord Bridge’s view in Reg v Blastland that statements by third persons are not admissible there is a long line of authority showing that a defendant must be allowed to cross‑examine a co‑defendant as to a previous inconsistent confession so long as the material is relevant to the defendant’s own defence. In my opinion a defendant should also be allowed to put a co‑defendant’s confession to witnesses to whom the confession was made so long as the confession is relevant to the defendant’s defence and so long as it appears that the confession was not obtained in a manner which would have made it inadmissible at the instance of the Crown under section 76(2) of the Act of 1984. There may be doubt as to whether the co‑defendant will be call (so that it may not be possible to put the confession to the co‑defendant directly) and not to allow the defendant to introduce it by way of cross‑examination of prosecution witnesses could lead to great unfairness.
Then there is a passage from the opinion of the Privy Council in Lobban where it was said:
“The principled objection to the discretion envisaged by counsel” – i.e. of the judge at the request of one defendant to exclude evidence tending to support the defence of another defendant – “is that it conflicts with a defendant’s absolute right, subject to considerations of relevance, to deploy his case asserting his evidence as he thinks fit.”
Well, we say that is apposite here. Secondly in reply, we shall not take you through it other than to emphasise the passages that we have extracted at paragraph 17 of our written submissions of the interview, which is at pages 5 through to 7 of our written submissions in paragraph 17 and also those in our reply at paragraph 6 on pages 2 and 3 and say this. Our learned friend has just pointed you to a couple of no comment responses. They were only in respect of other people, it seems. He named the appellant throughout the interview, described what he was doing with him at one point when they were dancing, described where he was not, if you like, so it cannot be said to be unreliable at all in respect of ascribing any role or lack of role for the appellant, in our submission.
BELL J: To that I think it should be noted that the trial judge – this is at appeal book 495, lines 4 and 5 – characterised as unbelievable the assertions in the interview respecting not having seen the co‑accused. I mean, in terms of questions of a miscarriage that may have some significance, Mr Croucher.
MR CROUCHER: I understand your Honour’s point, but I suspect when that point was being made, the analysis that we have gone through in our submissions about who was being spoken of in the no comment responses – and it is obvious that he is speaking of someone else. It is when you read the interview in total it is plain that he is referring to one of his other friends or more and not to Mr Baker when he refuses to name them, whereas when it comes to Mr Baker, the appellant, he does every time. Now, yes,
your Honour, it is relevant to have regard to his saying he did not see, but that in fact is not surprising in the circumstances. There are others who did not see. As I said before, in a melee you will have 10 different people, 10 different circumstances. He spoke of him being involved in the incident before. He spoke of things afterwards. He just did not see him at that time in circumstances where he is near the window on his own admission.
We have Masonga and Asfer saying, well, actually they did see the appellant and the other fellow but, of course, by definition you would have – LM would have his back to what is going on because they were near the window, on his own admission, within one or two metres, he facing the window, the deceased facing him and when you consider Asfer and Masonga, they are back here looking at, on their account, the appellant either being held or involved in a stoush with someone else. So there is no problem with that on the facts, your Honour. But again, this just illustrates that which counsel was denied from developing in front of the jury. If the Court pleases.
FRENCH CJ: Thank you, Mr Croucher. The Court will reserve its decision. The Court adjourns until 9.45 tomorrow morning.
AT 11.35 AM THE MATTER WAS ADJOURNED
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