Solicitors for the Appellants: James C. Galatas, Acting Director of Legal Aid Commission (Victoria)
Counsel for the Respondents: M.S. Weinberg QC/P.A. Coghlan
Solicitors for the Respondents: P. Wood, Solicitor to the Director of Public Prosecutions (Victoria)
Orders
Appeal dismissed.
Decisions
BRENNAN CJ The appellant and his co-accused, Kerry Calder, were convicted on two counts of murder. The relevant facts are set out in the joint judgment of Dawson, Toohey and Gummow JJ. The prosecution case against the two accused was that both were guilty of the murder of each of the two victims, Armstrong and Woodfall. The case against the appellant was put on alternative grounds: either both accused were acting in concert in committing the murders or the appellant aided and abetted Calder in murdering the victims. The salient points in the joint trial are stated in the joint judgment. The issue for determination is whether an erroneous direction was given to the jury by the trial judge as to the use that might be made in the appellant's case of out-of-court statements made by Calder.
2. Calder's statements, which admitted her culpability in the killing of Armstrong and Woodfall, might have been understood by the jury as an acceptance of sole responsibility for the killings. If so understood, the statements might have tended to show that the appellant was neither acting in concert with Calder nor aiding and abetting her in the killing of Armstrong and Woodfall. The statements were made either not in the presence of, or not with assent given by, the appellant. The trial judge directed the jury:
" You may not use Calder's admissions to the police which implicate Bannon against him, nor may you use Bannon's unsworn evidence which implicates Calder against her. What is said out of court and not in the presence of the co-accused is not evidence in the trial of the other accused."
Later his Honour reminded the jury (without comment) that the appellant's counsel had sought to rely on Calder's statements "to make it seem less probable that Bannon could have carried out these murders". The jury were recalled to receive a further direction including a direction that what Calder had said to a witness in the absence of the appellant "could not in any shape or form be used in Bannon's trial against him".
3. The ground of appeal to this Court is that the Court of Criminal Appeal erred in not upholding a submission that the trial judge should have admitted Calder's statements in exculpation of the appellant, though the statements were hearsay and not admissible to inculpate the appellant. Having regard to the reliance which counsel for the appellant placed on Calder's statement in his address to the jury and the…
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
Bannon v The Queen [1995] HCA 27
Case
[1995] HCA 27
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Bannon against a conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the proper application of the law relating to self-defence.
The primary legal issues before the Court were whether the trial judge had erred in admitting evidence obtained in circumstances where the appellant alleged he was unlawfully detained, and whether the jury directions on self-defence were adequate, particularly in relation to the appellant's subjective belief as to the necessity of using force. The Court also had to consider the scope of the defence of provocation in light of the evidence presented.
The Court analysed the principles governing the admissibility of evidence obtained in breach of statutory or common law rights, balancing the need for effective law enforcement against the protection of individual liberties. It affirmed that while unlawful detention does not automatically render evidence inadmissible, the court must consider the circumstances of the detention and the nature of the evidence in determining its admissibility. Regarding self-defence, the Court reiterated that the jury must be satisfied beyond reasonable doubt that the accused did not hold a genuine belief that the force used was necessary, even if that belief was mistaken. The Court also clarified the elements of provocation, emphasising the need for a wrongful act or insult that would have induced an ordinary person to lose self-control.
The High Court allowed the appeal, quashed the conviction, and ordered a new trial.