Bannon v The Queen

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M97 of 1994

B e t w e e n -
ANTHONY CHARLES RAYMOND BANNON
Appellant
and
THE QUEEN
Respondent

BRENNAN CJ

DEANE J
DAWSON J
TOOHEY J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 JUNE 1995, AT 10.06 AM

(Continued from 31/5/95)

BRENNAN CJ: Yes, Mr Holdenson.

MR HOLDENSON: At the conclusion of yesterday, I had reached paragraph 16.10 on the outline, which is to be found on page 8, which was the further alternative argument put on behalf of the appellant. This argument relies upon a series, and a recent series, of Canadian cases, and in that regard I ought, at the outset, properly answer the question put to me yesterday by Justice Gummow concerning the leading evidence text in Canada which sets out this area of law. As I indicated yesterday, the leading text is by Sopinka and others ‑ of course, Sopinka being a Justice of the Supreme Court of Canada ‑ the other authors being Lederman and Bryant; the name of the text is “The law of evidence in Canada”; the most recent edition being a 1992 edition published by Butterworths.

Proceeding on with paragraph 16.10, it is submitted that the confessions could well have been and ought to have been admitted into evidence in the trial of the appellant, on the basis that the evidence satisfied the criteria which has been enunciated in this recent line of cases, namely necessity and reliability. In so far as the case of Khan is concerned, that was a case where the evidence was sought to be led by the Crown; the nature of the evidence being inculpatory of the accused. The reason why the evidence had to be led in hearsay form was that the appropriate witness was not competent to give the evidence.

If I could briefly take the Court to that decision, reported in (1990) 59 CCC (3d) 92, in that case the accused was charged with the sexual assault of, or upon, a three and a half year old child who was subsequently found, of course, not to be competent to give evidence, and the facts of the case are set out at page 93 within the headnote, but in so far as is relevant for present purposes, within 15 or 30 minutes after the commission of the alleged offence the complainant reported the incident to her mother. There being such a period of time between the commission of the alleged offence and the report to the mother, it certainly was not such as to fall within an exception to the hearsay rule, namely the res gestae exception.

If I could take the Court to page 93c in the headnote:

About 15 minutes after leaving the accused’s office the mother asked the complainant what she had talked to the accused about.

There is reference to the conversation.

As a result of this conversation the police were contacted.....The trial judge held that this evidence was hearsay and did not fall within any of the established exceptions to the hearsay rule, and in particular the spontaneous declaration exception.

In so far as the reasoning of the court is concerned, if I could take the Court to page 99 at the very foot of the page, it was held by the Supreme Court - there had been one judgment of the court delivered by Justice McLachlin. At the foot of page 99 it was determined that the learned trial judge had correctly rejected the mother’s statement as a spontaneous declaration and it was not contemporaneous. As is set out three or four lines from the head of page 100, it was not made in circumstances of:

pressure or emotional intensity which would give the guarantee of reliability -

Then in the middle of page 100 commences the reasoning which, in my submission, has been the basis of this entire line of cases in Canada:

The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions -

and a number of them are there cited.

While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law. This has resulted in courts in recent years on occasion adopting a more flexible approached, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions.

There is then reference to the Canadian case of Ares v Venner and then, toward the foot of the page, your Honours will see reference to the standard decision of the House of Lords, Myers v DPP.

What is there set out from that point to the next page is a passage from the dissenting speech in Myers, the speech of Lord Pearce, which was taken up, or should I say adopted, by the Supreme Court as is apparent from the middle of the page at page 101 where the Supreme Court characterised the four tests set out in that dissenting speech: necessity and reliability. Through the subsequent pages of the judgment, the Court applies those tests to the facts of that case, determining that the requirement of necessity was satisfied and furthermore, the requirement of reliability.

In that regard, if I could take your Honours to the foot of page 104, four lines from the foot of the page:

The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as “reasonably necessary” - - -

GUMMOW J: But the principle that her Ladyship reached is at the bottom of 105, is it not? That is the actual - - -

MR HOLDENSON: That is the result of the application to the principle, yes. But, 105, the way in which that was reached was by determining that the requirement of necessity was satisfied because the child had been held to be incompetent as a witness and, at the head of page 105, the subsequent question whether the evidence was reliable:

Many considerations such as timing, demeanour ‑

and so on are there set out. But, one of the matters which was relied upon by the Court was that the content of the assertion made by the child was confirmed in that there was found on the child’s clothing a wet stain which contained within it upon analysis, both saliva and semen and in that sense, was considered to be an indication of reliability.

At the very foot of page 105, as your Honour Justice Gummow has indicated to me, it is determined that:

I conclude that hearsay evidence of a child’s statement on crimes committed against the child should be received, provided that the guarantees of necessity and reliability are met, subject to such safeguards the judge may consider necessary and subject always to considerations affecting the weight that should be accorded to such evidence.

And in so far as safeguards are concerned, that is a matter which was raised yesterday with me by Justice McHugh.

DAWSON J: It is a very odd result though, is it not, that a child who could not, so the judge found, give reliable evidence in court, was capable of making a reliable out-of-court statement?

MR HOLDENSON: That it correct, albeit one ought to indicate this, that the Supreme Court of Canada was not necessarily of the view that the trial judge was correct in determining that the child was not competent but be that as it may ‑ ‑ ‑

DAWSON J: He was not satisfied that the child understood the duty of speaking the truth.

MR HOLDENSON: That is correct but be that as it may that is an interesting question but nevertheless satisfied the requirements set out in the dissenting speech of Lord Pearce which was adopted and taken up by the Supreme Court of Canada. That case, although evidence led by the Crown implicating the accused in the commission of the crime, has been taken up in numerous cases in Canada. Just by way of interest, since special leave was granted in this matter last December, there have been either five or six cases reported in the Canadian Criminal Cases dealing with an application of this principle.

The most recent significant decision, in my submission, of the Supreme Court of Canada dealing with this principle is the one next cited on the outline and I do not propose to take the Court to it at this point, namely the case of Finta (1994) 88 CCC (3d) 417. As I indicated yesterday, I think in discussion with Justice McHugh, that was a war crimes prosecution where the accused sought to lead evidence in his defence from a number of witnesses who, not unnaturally, had died since the conclusion of the war. The requirement of necessity was, of course, readily made out. The witnesses had died and were hence unavailable and in so far as reliability was concerned it was determined that the statements were reliable in the requisite since, at least on their face, in circumstances where a number of the statements had been made to investigators of the Nuremberg War Crimes Commission.

BRENNAN CJ: What is the meaning of “reliability”?

MR HOLDENSON: The meaning of “reliability” is simply such that on its face it is correct or trustworthy, not wrong, not fabricated, not concocted. Perhaps in the light of that question I ought take your Honours to the decision of the Canadian Supreme Court in Finta. As I indicated just a moment ago ‑ ‑ ‑

TOOHEY J: Just before you go to Finta, if you look at Khan at page 185 on the right‑hand side, there is a reference in relation to this particular case of the sort of considerations that go to reliability, but it is not clear to me how the trial judge would be in a position to test those matters in relation to the child, although I suppose the judge would speak to the child in order to make some assessment of the child’s capacity to understand the difference between right and wrong.

MR HOLDENSON: That is correct, although in so far as that case was concerned, the child was young. It was considered that the child would know nothing of sexual matters, keeping in mind the nature of the allegation, which as I recall was the insertion of the penis into the mouth of the girl. She would not have known of such things. She would not have known and understood the language which was alleged to have been used by the accused at the time of the commission of the offence.

TOOHEY J: No, but that is not quite my point, Mr Holdenson. I am just drawing your attention to the fact that the court refers to such considerations as:

timing, demeanour, personality, intelligence, understanding, absence of any reason to expect fabrication -

I just wonder how the trial judge would be in a position to make that sort of assessment in a case of someone who does not give evidence but with whom the judge presumably has a conversation in order to make a determination as to whether the child is capable of giving evidence.

MR HOLDENSON: That, of course, is a situation which does not arise often, where there is an issue as to the competence of a witness in that sense, and when there is an issue as to that it is taken on board by a trial judge and he conducts the appropriate inquiry or investigation, but putting aside child witnesses, these sorts of things can be readily ascertained, in my submission, from a perusal of the depositional material before a trial court or, alternatively, on some occasions with a voir dire. For example, in so far as Finta is concerned, the requirements of reliability were considered to be satisfied in circumstances where, and it was patently obvious, the person making the statement was disinterested, the statement was made prior to any litigation commencing and it was made in circumstances where it could be assumed - although at the end of the day a question of weight for a tribunal of fact, it could be assumed that a person is likely to tell the truth in a formal situation, namely, the investigation by the Nuremberg War Crimes Commission.

If I could take the Court to that passage of the headnote at page 428 of that report, 88 CCC (3d) 428d, and it is conveniently set out in the headnote:

Although the statements by D were hearsay and, in fact, in some respects double hearsay, the trial judge properly admitted this evidence as an exception to the hearsay rule. There is a need for flexible applications of some rules of evidence in order to prevent a miscarriage of justice. The courts have recently adopted a more flexible approach to the hearsay rule and admitted evidence which is both necessary and reliable. Necessity may be present when no other evidence is available. Testimony may be found to be reliable when the person making the statement is disinterested, and the statement is made before any litigation is undertaken. It is also helpful if the declarant is possessed of a particular or special means of knowledge of the event.

And those criteria were satisfied in that case. The evidence was admitted or was to be admitted and, of course, at the end of the day it is a question of weight for the jury.

DEANE J: It is a strange approach, is it not, that it is an argument in favour of receiving evidence, that there is a complete absence of other evidence confirming it?

MR HOLDENSON: That is an argument in favour of the requirement of necessity but may well be in some cases ‑ ‑ ‑

DEANE J: But logically it is a rather strange proposition to say, “No, we will not receive this hearsay evidence because there is other evidence which indicates that it is completely accurate. If there were no other evidence, we would admit this hearsay evidence.”

MR HOLDENSON: That may well be, but there might be cases, of course, where ‑ ‑ ‑

DEANE J: I can well understand there could be cases like the case of a little child, where it all seems completely logical but you are pressing for a general principle, which is partly based on the supposition that the absence of other evidence is a reason for admitting hearsay evidence.

MR HOLDENSON: The absence of other evidence which is admissible in the traditional form. In other words, if the strict rules of evidence are to be applied, then there will be no evidence.

DEANE J: I follow the way you put it. I was just pointing out there is a mirror way of looking at it, which does not sound so logical when you expose it.

MR HOLDENSON: So I do not put it in the mirror way. As I was indicating, on the outline I have set out a series of Canadian cases. I do not propose to take the Court through those cases. Your Honours will there see Finta (1992) 73 CCC (3d) 65 again cited on the outline of submissions in the middle of the page, that of course being the decision of the Ontario Court of Appeal, where the evidence of the case was set out in much more detail than is to be found within the judgments of the members of the Supreme Court. Each of the other cases there simply discloses an application of that principle in Khan. Each involves a discussion in so far as those cases are concerned of necessity and reliability. In some of those cases the evidence is sought to be led by the Crown, to the obvious detriment of an accused, and in some of them vice versa.

Just as a matter of interest, your Honours will there see cited at the foot of that list the decision of the House of Lords in Kearley (1992) 2 AC 228. The facts of that case are certainly not unknown to the Australian Law Reports. That was a case concerning an allegation that the accused had engaged in drug trafficking. At the time of the police raid on the accused’s premises the police stayed and answered the phone. There were numerous phone calls where people requested that drugs be supplied, the issue being: could the police give evidence of that in the prosecution of the accused? The House of Lords decided by majority no, that was hearsay evidence.

Of course, that sort of question is well known to Australian courts in so far as the prosecution of SP bookmakers is concerned. But in any event, Kearley’s Case held the evidence to be inadmissible. Edwards (1994) 91 CCC (3d) 123 the case cited immediately above, the Canadian decision, reaches an opposite result by reason of an application of that principle first enunciated in Khan.

DAWSON J: But we admit evidence of that sort in this country.

MR HOLDENSON: That is correct, and the most recent ‑ ‑ ‑

DAWSON J: Verbal acts.

MR HOLDENSON: Yes, your Honour, and the most recent example of that in that sort of case is a decision of the South Australian Full Court in Firman (1989) 50 SASR. But be that as it may, Edwards admitted the evidence by reason of the basis set out in Khan. If I might proceed, it is submitted that, as is set out in paragraph 16.11, such an approach is consistent with the recent statements of this Court in Walton, Benz and Pollitt. I have already set out on the outline the reference to those passages, but if I might just at this point remind your Honours of a passage to which I did not take the Court yesterday within the case of Reg v Benz (1989) 168 CLR 110 within the joint judgment of her Honour Justice Gaudron and your Honour Justice McHugh. If I could take your Honours to a passage at page 143, about 10 lines from the foot of the page, and I quote:

There is, however, much to be said for the view that the rationale of the exceptions to the rule which prohibits the admission of hearsay evidence is that evidence falling within the exceptions has a high degree of reliability and can be acted upon safely.....If this is the rationale of the exception to the hearsay rule then, notwithstanding the decision in Myers, a strong case can be made for developing and applying the common law rules of evidence by reference to the principle that hearsay evidence will be admitted when it appears to have a high degree of reliability.

Now, in my submission that is, in effect, that which was and has been enunciated by the courts of Canada and presumably the reference to the decision of Myers is to the majority and the way in which that is couched tends to lend support for the minority view which was, of course, adopted in the Canadian cases.

If I might continue with the outline as is set out at the foot of page 8 in paragraph 16.12: it is submitted that the requirement of necessity was satisfied in this case in circumstances where Calder stood mute. It is further submitted, as set out in the next paragraph that the requirements of reliability were satisfied and in that regard, I rely on, of course, paragraph 13 which refers to the timing of the confessions by Calder; they were voluntary on their face, spontaneous on one view, although a question of fact, unequivocal and also at the time, as I have indicated there with the references to the passages in the appeal books, the evidence was that Calder was speaking freely; she was speaking fluently notwithstanding that she was in pain. Of course, it is common ground she was present at the crime scene; the confessions were not made in response to leading questions.

At that time, she had no at least obvious reason to lie, exaggerate, fabricate and so on. It can hardly be said in this case that Calder was in the camp of the appellant or, for that matter, the relevant witnesses Goodman and Duiker. In those circumstances, keeping in mind that which is set out in the succeeding paragraph on the outline which refers to the rationale for the admission into evidence against a maker of a confession, that it is presumed that what a person confesses to is correct as a matter of fact. I have cited there what might be considered to be the standard cases which are authority for that proposition.

It is submitted that in the light of that rationale for the admission into evidence of confessions, albeit admission into evidence against the maker, it is artificial to confine the traditional exception of declarations against interest to pecuniary or proprietary interest, particularly in circumstances as is set out in paragraph 16.16, which might be considered to be the indicia of reliability as to the content of these confessions, in other words, material which renders the confession, to use the language of a number of the American cases, inherently trustworthy. There was first ‑ and I do not propose to take the Court in any detail through this evidence, it is all identified in the outline ‑ the motive that Calder had to kill the deceased. Now, in that regard, if I might just pause, I provided to the Court yesterday and ‑ ‑ ‑

BRENNAN CJ: Before you go on to that, can I just ask you this? The exception of declarations against pecuniary and proprietary interest; are those declarations admitted under the old law, as it appears, in cases other than those where the declarant is deceased?

MR HOLDENSON: The question, as I understand it, is directed at whether or not the declarant must be dead before the evidence can be led.

BRENNAN CJ: Yes.

MR HOLDENSON: There has been a relaxation in the cases, as I understand them, to the effect - and Baker in his text confirms this by way of argument - that, no, it is not necessary that the person be dead; just practically unavailable, unable to be found, and it must be said that in van Beelen’s Case the Full Court of the Supreme Court of South Australia was prepared to assume, in light of the cases which that court set out within their judgment, that it was not necessary that the declarant be dead, but unavailable, and the Full Court of the Supreme Court of South Australia made that assumption and proceeded on that basis, and a number of the authorities, as I recall, are set out within that judgment, and the Canadian and American cases are to that effect.

BRENNAN CJ: Are there any Australian cases which so hold?

MR HOLDENSON: As I recall, there is an Australian case referred to in van Beelen, a Victorian case, from 1931, but ‑ ‑ ‑

BRENNAN CJ: Perhaps you could give us a note of it afterwards.

MR HOLDENSON: Yes.

BRENNAN CJ: The element of necessity must have been addressed, I take it, in that case?

MR HOLDENSON: Yes, although it must be said, as that court said on a number of occasions within the judgment ‑ it was put in an extraordinary way, with respect to counsel who appeared in that way, and I am simply paraphrasing the expressions used in a number of passages within the judgment of that court, as to how it was that evidence would be utilised in that petition.

BRENNAN CJ: And if one adopts the Canadian approach, does that make the evidence admissible for the Crown as well as for the accused?

MR HOLDENSON: If one were to adopt the approach set out in cases like Khan and Finta, yes, it does and that, in my submission, is contrary to that line of cases, Demeter, O’Brien, Pelletier and so on, which expanded the declarations against pecuniary or proprietary interest to include declarations against penal interest because, as your Honours will recall, the case of Lucier decided in 1982 was to the effect that the Crown could not lead such evidence as a matter of fairness and it might be said that there is therefore a conflict and I think it is the subject of reference in my friend’s outline of submissions between the line of cases commencing with Khan and those cases dealing with declarations against penal interest.

Of course it is the appellant’s contention in this Court that that line of cases commencing with Khan ought be confined, notwithstanding the approach of the Canadian court, to statements in the nature of exculpatory statements in so far as a given accused is concerned, but the cases are wider. So to answer your Honour Justice Brennan’s question, it depends on which line of Canadian cases one is referring to, but my contention is to adopt the statement of the Supreme Court of Canada in Lucier, which is only exculpatory statements ought be led and so not inculpatory evidence to be led by the Crown.

McHUGH J: But do not these problems throw up a question as to whether the Court should intervene at all, particularly having regard to the new legislation that is being introduced around Australia and the legislatures have turned their attention to the hearsay problem and there is a recent Commonwealth Evidence Act been proclaimed, has it not? New South Wales I think has got a similar Act and it is probably happening all around the country.

MR HOLDENSON: I join issue with that. It is not happening around the country and there has been no activity in Victoria in that regard so far as I am aware. If one turns to the American situation, in America where one might have thought that things would be in the nature of a model code might be more readily adopted, in the space of 10 or 12 years after the federal code came into being and came into operation, within the succeeding 10 or 12 years only half the American States had adopted it and simply because there happens to be a Commonwealth Evidence Act which touches upon hearsay and amends the rules as we have understood them traditionally and such Act being adopted, at least if not identically near enough to, so in New South Wales, well, there is other States and Territories and it may well take some time and in so far as this case is concerned, if one just pauses for one moment to consider the case of Bannon, as I understand the application of those provisions of the Commonwealth Evidence Act and for that matter the New South Wales Evidence Act, this evidence would have been admitted in the trial of Bannon as his counsel sought.

TOOHEY J: It is not hearsay that you are really talking about in the context of this legislation, are you? It is legislation which in some States has existed for many years, I mean some States in this country, and it lets in a statement by a deceased declarant if that statement would have been admissible through the mouth of a person who has since died. In a sense it lets in hearsay because it has become hearsay, but the effect of the legislation as I understand it generally is to allow evidence as to a statement made by a person who, if alive, would have been in a position to give that evidence.

MR HOLDENSON: That is not my understanding. There is no State in Australia whereby evidence - and just moving on from Bannon for a moment - of a nature similar to this would not have been admitted in the trial, notwithstanding the fact that it may well have found itself within the depositional material and Goodman and Duiker died.

TOOHEY J: No, I am not suggesting that. On the contrary, what I am saying is that your references to hearsay in legislation is not really the situation that is being dealt with in some of the statutes. Those statutes permit evidence as to what was said by somebody who has since died, had that person been able to give that evidence when alive.

MR HOLDENSON: Yes, had the person been able to give the evidence. So the question which arises is could the person have given the evidence if they were alive?

TOOHEY J: Of course.

MR HOLDENSON: Yes, I understand your Honour’s comment. Of course there are situations which arise as happened in Zullo, the first case to which I referred to Court yesterday, the decision of the Queensland Court of Appeal, the Crown led the evidence. And there has certainly been in Victoria at least one reported decision where the Crown led hearsay evidence, that being a decision of the Full Court of the Supreme Court of Victoria in Reg v Radford (1993) 66 A Crim R 210 where the Crown led hearsay evidence which, as I recall, was double hearsay and once it was in the Full Court determined that it was in, as I recall, for all purposes including the proof of the truth of the contents thereof, but that was a case where the evidence went in in the form of statements or depositions by consent. If I might return to ‑ ‑ ‑

DEANE J: Can I take you back for one moment. When you say only exculpatory statements, are you suggesting that one can pick and choose in terms of a lengthy overall statement or statements?

MR HOLDENSON: No, I am not suggesting if, to be absurd, there was a statement one page long ‑ ‑ ‑

DEANE J: Well, here Miss Calder made a number of relevant statements over a period. Could you pick the particular ones or is everything that she said over that period admissible?

MR HOLDENSON: If I might answer the question in this way: in the same way that in construing a document, as courts do on a regular basis, one cannot simply focus upon one clause, one must focus upon the clause in the context of the document as a whole. So, in so far as a case similar to Bannon is concerned you had on the night, within 20 or 30 minutes of each other, four statements to the same effect. Then four days later in a very formal record of interview you have a different scenario being clearly asserted by Calder. She asserted in the record of interview set out in one of the volumes of the appeal book that, no, she had not taken part in the murders, she was not a participant, the murders were carried out by Bannon.

Of course, at that time it was four days later, certainly not spontaneous utterances, certainly she had time in which and very much a motive; investigating police officers, in custody having been arrested, very much a motive to fabricate or concoct or lie, but as a matter of general fairness, the jury ought be put in a position of consideration what weight to attach to, in this case, the four confessions to have before it and only for that purpose the denial of, in this case, Calder, but that denial not being capable of being used as proof of truth of content; in other words, prior inconsistent statement attaching to - as a matter of rebuttal.

But in this case - and this is the intriguing thing about the case of Bannon - the Crown would have had a problem in asking the jury to do that because the Crown was of course asserting to the jury that the content of Calder’s record of interview was false and asked the jury instead to rely upon the confessions to Goodman and Duiker and to disregard the denials of criminal liability in that record of interview, although asking the jury to act upon other parts of the record of interview and to use portions of the record of interview as false denial type evidence, consciousness of guilt. In so far as this case is concerned, the Crown would have a problem in asking the jury to take into account that record of interview of Calder in its assessment of the weight to be attached to the four so-called confessions.

BRENNAN CJ: How would the trial judge here have been able to assess reliability of the exculpatory statements in the light of the confessional statement four days later?

MR HOLDENSON: I am sorry, your Honour, I do not understand the question, because the four day later record of interview was not confessional.

BRENNAN CJ: It alleged that Bannon had done the deed by himself.

MR HOLDENSON: That is correct. It would be appropriate ‑ ‑ ‑

BRENNAN CJ: Well, there are two pieces of evidence: the first is said to bear an exculpatory meaning; the latter one which inculpates Bannon. What does the trial judge do?

MR HOLDENSON: Yes. In this case the trial judge would direct the jury that the jury could take into account ‑ ‑ ‑

BRENNAN CJ: But at the stage of admissibility, what does the judge do? There is necessity and reliability.

MR HOLDENSON: In so far as reliability is concerned, determining whether or not the material ought be admitted, the trial judge would consider that, as is set out in paragraph 13, the confessions were spontaneous, voluntary, unequivocal, made in circumstances where she was not under any duress or anything like that, and would also consider that, at the time of the record of interview, severable in time, distinct in time, four days later, no longer the emotional intensity of the situation which would give rise to some sort of guarantee of truth of that which was said within an hour or so of the murders, in circumstances where there is very much a motive or a reason to tell lies and minimise one’s criminal involvement, namely arrest, custody, “This material can be used in evidence against you”, would simply say, in my submission, in those circumstances it goes in. The requirement of necessity and reliability, in particular, has been satisfied.

Now, of course, the question - and this is a point against me - is much more difficult, if, for example, the record of interview had been conducted the next morning, in so far as this case is concerned. Let us assume that there was no knife in the foot, there was no need to go to hospital, but let us assume there was an arrest at 9 am in the morning, after Calder had slept properly and at 10 am there is the complete denials. Well, the argument becomes a little weaker, but not much weaker, by reason of the circumstances being such as to fabricate.

The point ‑ and this is a point very much against myself ‑ if Calder had got home, putting aside knife in foot and pain and said to her girlfriend, or her wife as she called her, “Well, I’ve just been out and Bannon’s engaged in some terrible things. Bannon’s killed two people and I just stood by and did nothing”. Well, there is a problem there, although in so far as this case is concerned, one would argue at trial before the trial judge that Calder ‑ depending upon the entirety of the evidence - would have a motive to ingratiate herself to her wife, a motive to play down her criminal role, a motive to concoct.

BRENNAN CJ: Yes. That just leads to one further question and then you can return to your argument. If this Court should be minded to accept your argument to follow the Canadian case of Khan, what then should be the order that should be made at the end of the day?

MR HOLDENSON: The order of this Court?

BRENNAN CJ: Yes.

MR HOLDENSON: Appeal granted; retrial ordered.

BRENNAN CJ: Appeal granted on the basis that - - -?

MR HOLDENSON: On the basis that the learned trial judge erred in excluding from consideration of the jury in the Crown case against Bannon the four confessions.

BRENNAN CJ: Well, that means that we must determine reliability?

MR HOLDENSON: To some extent, yes but, in my submission, the evidence ‑ and I have identified the evidence in the outline ‑ is such that the requirement of reliability is satisfied. Now, an alternative argument to that is, rather than this Court being asked to wade through ‑ and I say that respectfully ‑ three volumes of appeal books and so on, to remit the matter for the court below to make that assessment of the reliability. And that has happened in one sense. For example, in the case of Palmer v The Queen ‑ ‑ ‑

BRENNAN CJ: But which court below? You mean retrial, or do you mean back to the Court of Criminal Appeal.

MR HOLDENSON: Back to the Court of Criminal Appeal which would then, in the light of this Court’s judgment, assess the so-called reliability and if on its face, in accordance with the Canadian tests, were satisfied, allow the appeal in that court and direct that there be a retrial.

McHUGH J: But, even if you are right, was there any miscarriage of justice in this case? After all, the Crown case was that one or other of the accused had done the stabbing and was acting in concert with the other, or that other person aided and abetted. Supposing the jury accepted the statements in favour of your client, that is to say that it was Calder who did the stabbing. That does not help you, does it, having regard to the Crown case that you were either acting in concert with her or that you aided and abetted her?

MR HOLDENSON: There has been a miscarriage, in my submission, because the appellant was denied his entitlement to rely upon those so‑called confessions in the jury’s determination of the Crown case against him, which confessions tended to confirm his defence and also the jury’s findings of fact which the jury ‑ ‑ ‑

McHUGH J: They did not confirm his defence, did they? I mean, somebody had to stab them; your client said “I had nothing to do with it”. The Crown case against him really relied on general circumstances, did it not?

MR HOLDENSON: Correct, your Honour.

McHUGH J: The fact is that they both go there together and he is with her afterwards and he goes ‑ ‑ ‑

MR HOLDENSON: There are inconsistent accounts given by him which are explained in his unsworn evidence. I understand that, but, your Honour, the jury had to make - as I indicated yesterday in opening the matter, the jury had to make findings of fact, namely that the two accused at trial were acting in concert or one was aiding and abetting the other. The jury had to make those findings of fact. The learned trial judge so directed the jury and he gave them some assistance as to how the jury might draw inferences in order to make those findings. The jury was denied this evidence in determining whether or not Bannon had acted in concert or had ‑ ‑ ‑

McHUGH J: I would have thought it was pretty plain that the jury would have come to the view that she was the one who did the stabbing. If that is the case, how does it help you?

MR HOLDENSON: In those circumstances, if those confessions be construed as “I alone, I Calder by myself, in no way assisted by and there being no agreement to the effect that” and so on, then Bannon is to be acquitted.

McHUGH J: You have got to read a lot into her statement to say “I had no assistance from him”.

MR HOLDENSON: If I could take your Honour back to 16.16 on page 10 of the outline of submissions, if read in the way for which I contend, which was of course the way in which counsel for Bannon at the trial sought that this evidence be used, then the content of those confessions if read in that way is consistent with other evidence in the trial. If I might just identify to the Court that evidence. In that regard there are two pieces of transcript, or two portions of evidence not within the appeal books. I provided to the Court yesterday one bundle of trial transcript. My friend has no objection to this being used by the Court.

It is the evidence of Kelly Skinner and one of Calder’s brothers, Rodney Calder. The effect of that evidence is this - and I do not propose to take the Court through it at this point - but Skinner gives evidence at page 350 that the police searched the premises of the male deceased, Armstrong, for drugs. That was in late December 1990. Rodney Calder, at pages 352 to 356, in several passages gives evidence of a conversation with Calder in mid‑February 1991, which makes it just a week or so prior to the killings, where she said to her brother that she had been “ripped off” by Armstrong - that was the expression that was used by the witness - and was going to kill him for revenge.

Just returning to the outline, Calder had a motive to kill the deceased and, once she killed the male deceased, as the learned trial judge identified to the jury, there was every reason to kill the female deceased because, of course, the female deceased was present and would be able to identify the perpetrator of the killing on ‑ ‑ ‑

McHUGH J: I appreciate that, but all those things seem to indicate that the jury would probably think that she was the one that did the stabbing, particularly since she stabbed herself in the foot with a knife, but look at the conversations that you rely on, “Oh, fuck, I don’t know, I think I’ve killed these cunts.” “You don’t understand I just can’t go to a doctor.” “I could’ve killed these people tonight.” “You just don’t understand.” “You know too much already.” “These two people are dogs.” “I could have killed these two people, but it doesn’t matter. It’s not a worry. Prison means nothing to me.” Now, how do you spell out of that any implication that he had nothing to do with it at all?

MR HOLDENSON: I spell it out in this way, sir. It is a question of fact for the jury. It cannot be said, in my submission, those statements in the light of the evidence at the trial, some of which is identified in 16.16, it cannot be said that it does not mean to the contrary. Now, it is a jury question. Counsel at the trial sought to have the evidence used. That was the decision made, decision to have the evidence used in his case as exculpatory evidence, and it cannot be said that it is not, in my submission. The jury might decide to the contrary.

McHUGH J: Who decided to have it used as exculpatory evidence?

MR HOLDENSON: Counsel for the appellant at the trial sought to have this evidence as exculpatory evidence in his trial. Now, it might be said by way of argument to a jury at the time of the trip or the visit to the Cranbourne farmhouse in circumstances where Bannon and Calder arrive together and so on, it might be said that in circumstances where she did not say, “We might have killed them,” it lends support for the proposition that this evidence truly is at the end of the day exculpatory evidence in so far as Bannon is concerned. She did not say, “We’ve been out blueing,” which was one of the pieces of evidence. She says, “I’ve been out blueing.”

DEANE J: Was there any evidence at all against your client that supported Miss Calder’s account that he had done the stabbing?

MR HOLDENSON: No.

DEANE J: There was not any?

MR HOLDENSON: No, only false denials or inconsistent explanations for which there was an explanation in his unsworn evidence.

DEANE J: It would help you if there had been such evidence, would it not?

MR HOLDENSON: I am sorry, I missed that.

DEANE J: I said it would help you in answering Justice McHugh if there had been some evidence against your client to the effect that he had done the stabbing.

MR HOLDENSON: Yes. Well, there was none.

McHUGH J: That is why I drew your attention to it is that the case against your client depended upon general circumstances.

MR HOLDENSON: Yes, but it involved a finding of fact, acting in concert, namely, there had been the agreement or one’s aiding and abetting the other and in so far as that finding of fact is concerned it is submitted that these confessions are very important evidence in so far as reaching that finding of fact to the requisite standard is concerned. In my submission, and this is really a proviso point, it cannot be said that the conviction - keeping in mind the respondent bearing the onus, it cannot be said that a conviction was inevitable because it cannot be said that if that evidence had been permitted to be used by the jury in its determination of whether or not there was that antecedent agreement.

McHUGH J:But there was no evidence at all that your client did the actual stabbing.

MR HOLDENSON: What comes to mind is, of course, there was one piece of evidence, namely cuts to the fingers of Bannon, and he had an explanation for that, which was inconsistent with him doing the stabbing.

McHUGH J:Yes.

BRENNAN CJ: What was the fact that the trial judge had to find was reliable in order to make this evidence admissible if the Khan line of approach is taken?

MR HOLDENSON: Those matters set out in paragraph 13 - and I am repeating myself, your Honour, I recognise that - in part: they were voluntary, they were spontaneous, they were unequivocal, and also those matters set out in ‑ ‑ ‑

BRENNAN CJ: You have added “inherently reliable” there.

MR HOLDENSON: Yes, that begs the question, of course, so I meant to say just then “unequivocal”, coupled with, of course - and this is the rationale for the admission into evidence of confessions against the maker - it may be presumed to be correct that which a person admits to, as well as those matters identified in paragraph 16.16: a week before, the motive to kill; also the propensity evidence which is identified in ‑ ‑ ‑

BRENNAN CJ: What is the fact? What would the judge ask himself? “Am I satisfied that this statement exculpatory of Bannon was true or is likely to be true?”

MR HOLDENSON: “Am I satisfied that this statement is capable of being found by the jury to be true?”

BRENNAN CJ: Capable of being found by the jury?

MR HOLDENSON: To be true.

BRENNAN CJ: So that the test is not necessity and reliability, but necessity and capacity to be found to be reliable?

MR HOLDENSON: Well, that is the way in which reliability, as I understand the Canadian cases, has been considered. Reliability, it is a preliminary determination by the trial judge, but at the end of the day, of course, a jury can reject it. In the same way, in so far as confessional evidence is concerned, it is only to be established by the Crown on the balance of probabilities and so on, but at the end of the day the jury could reject it, more particularly in the so-called old days, before tape recording and video recording, but ‑ ‑ ‑

BRENNAN CJ: Yes, but I mean, the question of whether or not a confession is voluntary or not is a matter of fact found by the judge on the voir dire, whatever the jury might do with it subsequently. But, as I understand your argument here, based on Khan, at all events, it is that if the evidence is capable, as a matter of law, of being found by the jury to be truly exculpatory, then it is admissible.

MR HOLDENSON: Yes.

BRENNAN CJ: It does not matter whether it is in fact true, or even appears to be true, to the judge.

MR HOLDENSON: Well, the jury makes that finding. It must appear to be true because if it does not appear to be true then it could never be found by the trial judge that it was capable of being accepted by a jury.

BRENNAN CJ: And how does that work so far as the onus of proof is concerned since we are dealing with exculpation not inculpation?

MR HOLDENSON: The accused would presumably have to satisfy that requirement on the balance of probabilities but, of course, if one might just return to the case of Bannon for the moment, that is not a question which would arise in this case because, of course, the Crown was relying upon that very evidence in any event in its effort to convict at the same time, Calder.

BRENNAN CJ: That is for the purpose of showing the truth of the statement that, “I stabbed the deceased.”

MR HOLDENSON: Yes.

BRENNAN CJ: But you wish to rely on it in order to say that it is prima facie reliable or that it is reliable or is capable as being regarded as being reliable as meaning, “and Bannon did not.”

MR HOLDENSON: That is correct.

BRENNAN CJ: But that is a question for the jury to be satisfied about on the balance of probabilities that that is what it means.

MR HOLDENSON: Not by the jury, no. The jury would have to make that determination if they thought that that evidence was reasonably true or a possibly true account; that is, “I, Calder, did it and him, Bannon, did not do it”. The jury would not have to make that finding beyond reasonable doubt or on the balance of probabilities. It would just be evidence to be considered by the jury to be not found to any particular standard, the question being whether or not the Crown had made out its case beyond reasonable doubt.

BRENNAN CJ: Then admissibility depends upon the possibility that the evidence might engender a reasonable doubt about the truth of the facts stated in it.

MR HOLDENSON: Yes.

McHUGH J: You see, one problem about this is that she told a deliberate lie to these people. She explained the injury to her foot by saying, “That is what you get when you kick knives out of people’s hands.”

MR HOLDENSON: Yes, there was a lie there.

McHUGH J: So, the first statement she makes to them is a lie.

MR HOLDENSON: I do not say for one moment that her entire course of conduct at that farmhouse and on the car trip from that farmhouse when Duiker drove her to her home in Frankston is not to be taken into account. Yet, one cannot be artificial and say, “We’ll have that sentence there but not the rest of the page.” You cannot do that. That concession must be very quickly made and that is all the material to be taken into account in determining what those words, which we are talking about in this case, those four confessions, what they really meant. There would some cases where there might have been a dozen lies told before and after and during those confessions. It is a matter, at the end of the day, for the tribunal of fact, if it gets that far, depending upon the preliminary determination of course by the trial judge.

Just continuing to identify what I have called the indicia of reliability, you have, in the middle of page 10, reference to the propensity evidence. At the foot of the page you have reference to the violent character of Calder and you have reference, in the middle of page 11, to the forensic evidence, which was expressed in the way of possibility and then, at the foot of the page, you have reference to the comparative size and strengths of the two then accused.

Taking the Court to the final page of submissions; it is submitted that ‑ just turning for one moment to this case ‑ to use the wording of your Honour Justice Deane in Pollitt’s Case, what has happened in so far as the case of Bannon is concerned, where the jury, in an effort to convict Calder, are permitted to rely on four pieces of evidence, but at the same time same place, in circumstances where the evidence is, on one view, material to the defence ‑ I say “one view”, it depends on what the jury make of that evidence ‑ on one view the other accused is denied the opportunity of invoking that evidence in his defence. It is submitted that- and this is a submission, it is an assertion - that confounds justice and common sense.

DEANE J: Was it ever put against your client by the Crown that, on one view, he was the main actor?

MR HOLDENSON: No, not as I recall, no.

DEANE J: It was common ground that Calder had been the primary assailant, in the sense of the person who primarily did the stabbing?

MR HOLDENSON: No, the Crown did not say that. The Crown clearly indicated that Calder had the motive. Bannon did not have any motive; did not even know these people.

DEANE J: Well then, it was suggested by the Crown that, on one view, your client could have done the stabbing?

MR HOLDENSON: Yes, it was. The Crown did not identify the primary assailant.

DEANE J: Which means that your defence was, No 1, “Calder was the person who did the stabbing”; No 2, “I had nothing to do with it.”

MR HOLDENSON: Correct.

DEANE J: And this evidence went directly and conclusively, on your approach, to the first step in your defence, that is, that it was Calder who primarily did the stabbing?

MR HOLDENSON: Yes, albeit entirely consistent with the second limb to the defence, namely, “I didn’t have anything to do with it”, if interpreted as ‑ ‑ ‑

DEANE J: I am just wondering why, in terms of satisfying the exculpatory element, you keep concentrating on your client having nothing to do with it when these statements go directly to the first step in your defence, that is, that it was Calder who primarily did it.

MR HOLDENSON: That is correct. And, certainly, in the light of the directions of the trial judge, an open factual option or scenario, namely one person only was involved in, in the broad sense, the killing of the two deceased. In that regard, if I might just remind your Honours that there was a comment by the learned trial judge to the jury that if they were to find that a particular accused had actually killed one of the two deceased, then the jury could proceed on the basis that that particular accused was in some way involved in the killing of the second victim and no complaint was made as to that direction.

The general submission is set out in paragraph 16.18 of the outline and then finally, paragraph 17, and this is perhaps really what all the

questions have been directed at, or most of them, save as to those put by your Honour the Chief Justice in the last little while. In the circumstances of this case, it is submitted that it is not open to apply the proviso and it is submitted that all those questions are really as to the proviso, especially in circumstances where the effect of the evidence would have been to corroborate the appellant’s evidence and thereby tend to negate the inference that the appellant participated in the killing of the two deceased.

Your Honours will there see reference to Glennon; that being, for the record, Glennon v The Queen (1994) 179 CLR 1, the most recent decision of this Court dealing with the application of the proviso and in circumstances where the respondent bears the onus of demonstrating or proving that the conviction of Bannon was inevitable. It is submitted that, in the light of that, the proviso could not be applied and the appeal, if the Court were to agree with the submissions made on behalf of the appellant as to the admissibility of this evidence, it would be necessary to allow the appeal and order a retrial, whether or not the matter be directed for some sort of evaluation of the evidence remitted back to the court below.

That happened in, of course, the case of Palmer v The Queen (1992) 106 ALR 1 where the submission made on behalf of the application and appellant in that case was that the court below had not engaged in the proper task of analysing whether the conviction was unsafe and unsatisfactory. Once it was determined by this Court that the appropriate means of reaching such a conclusion had not been engaged in, the case was remitted to the court below. Unless the Court has any further queries or concerns, that concludes the submissions at this point on behalf of the appellant.

BRENNAN CJ: Thank you, Mr Holdenson.

MR HOLDENSON: If your Honours please.

BRENNAN CJ: Mr Weinberg?

MR WEINBERG: If the Court pleases, before moving to the discussion of the relevant principles, could I just take the Court to one additional piece of evidence which we submit is of great importance in answering a number of the matters that have been addressed during the past half hour or so to my learned friend. It is at page 255 of the appeal book, at about line 25, and the reason that it is important is that it constitutes the witness Duiker’s evidence of what Calder had first said upon arrival at the farmhouse. Your Honours will see that the question was asked:

Did you during that time that you were cleaning her foot, did you ask her how it happened?---Yes, I did.
What did she say?---She told me ‑ - -

McHUGH J: I am sorry, page is it?

MR WEINBERG: Page 255, your Honour.

BRENNAN CJ: And whereabouts on that page?

MR WEINBERG: Line 23. That is the preliminary question:

Did you during that time that you were cleaning her foot, did you ask her how it happened? ‑ ‑ ‑Yes, I did.
What did she say? ‑ ‑ ‑She told me that herself and the other bloke was involved in a knife fight in the Dandenong area.
Yes? ‑ ‑ ‑And - sorry?
Go on? ‑ ‑ ‑And she had just said she had been involved in this knife fight with them -

and so forth. Bearing in mind the appellant’s defence that he had been totally immobilised by Calder, and had had nothing to do with the murderous episode at all, one is faced immediately with the problem that as part of the very conversation in which these allegedly exculpatory remarks are made, there is a most damaging statement which is inculpatory, in our respectful submission, of Bannon, because it shows that there was an involvement on his part, if this be accepted, in the very activities that led to the deaths of the two deceased. So one is faced with the conundrum that was raised with my friend, which he responded to by saying one can separate out the four confessions, as he described them, from a record of interview some days later but, with respect, one cannot do that in relation to this part of the very same conversation, which is inculpatory. So one is immediately faced with the problem that if his contentions are correct, what happens to the inculpatory part of the conversation or the admission is the Crown denied the right to rely upon that on hearsay principles.

Now, having made that preliminary point about the evidence in the case, could we address the question of principle, and could we note that our learned friend appears to have stated the principle in various ways, at various levels of generality. At its widest it appears in his paragraph 16.18 at page 12 of his submissions, and the formulation therein contained has nothing whatever to do with, or is not confined with, declarations against penal interest or declarations against interest at all. It is a general call for this Court to recognise that there should be an exception to the rule against hearsay, which renders admissible any hearsay, so long as it is exculpatory, prima facie reliable, and necessary to adduce in hearsay form. That is one level of the argument that has been addressed and, indeed, it seems to conform to the general approach that has recently been adopted by the Supreme Court of Canada, in the line of authority to which my friend has taken the Court, Khan’s Case, with the exception that in Canada the courts appear to have refused to draw the distinction between evidence being used only in favour of the defence and evidence being available to be used by the Crown in support of the Crown contentions. And we have the difficult situation now in Canada that the trial judge goes through the kind of process that was addressed in Khan’s Case and hearsay can be led, if necessary and if relevantly determined to be reliable by the judge, against an accused person.

At that level what the applicant is contending for is, in fact, a wholesale revision, we would say, of the hearsay rule of major dimensions. At a lessor level, if one may put it that way, one level down from that, the applicant contends that this Court should recognise an exception to the hearsay rule involving third party confessions, where the condition is that the statement be against penal interest and known to be against penal interest and so forth, and one could even come down one stage from that and see a more modest submission that the common law hearsay rule, dealing with declarations by persons, since deceased, against pecuniary or proprietary interest should be expanded to include declarations against penal interest and also expanded, if necessary, to include general unavailability rather than the prerequisite of the declarant having been deceased.

It is our respectful submission to this Court that this Court should most definitely not follow the approach that has recently commended itself to the Supreme Court of Canada and accept the proposition that, as a general principle, inculpatory and exculpatory, or even limited to exculpatory, evidence which is necessary and reliable should be admitted by a trial judge.

It is our respectful submission that the difficulties associated with the task of a trial judge in conducting a trial would be multiplied very considerably if criteria of that kind were adopted as being the touchstone for general admissibility of evidence which prima facie is excluded because it is hearsay. There would be very little capacity to predict, in our respectful submission, what evidence the Crown would be able to lead in advance of a trial. It would be moved from a law of evidence which consists of tolerably clearly established rules and tolerably clearly established exceptions to a law of evidence which was based much more upon broad principles and discretion with a considerable degree of uncertainty.

That is not the approach that has commended itself to any law reform commission that has considered overhaul of the law of evidence, whether it be English law commissions, whether it be the Australian Law Reform Commission; nobody who has looked seriously at the question of reform of the law of evidence, the United States, over many, many years has come to the view that that is a sensible way of dealing with evidence and particularly evidence in the criminal context. Whatever deficiencies there may be in the common law exposition of certain of the exclusionary rules of evidence and the exceptions to those rules it is recognised and properly recognised, in our submission, that some measure of certainty there must be, some capacity to tell in advance, in accordance with properly and clearly defined guidelines whether evidence in question can and should be led.

There must be a capacity for certainty. There must be a capacity for proper review and we would, with respect, invite the Court to reject the invitation to accept the Canadian position. My friend does not like the ‑ ‑ ‑

BRENNAN CJ: Can you give us a reference to any of those mature considerations of the question of rules as against broad principles?

MR WEINBERG: Yes, your Honour, I could. Your Honours will find the discussion in the various working papers of the Australian Law Reform Commission which produced the evidence Act.

BRENNAN CJ: Yes, no doubt one could if one had a year or so to spare.

MR WEINBERG: No, your Honour, I was not proposing that your Honours explore that. I will undertake to provide to your Honours precise references to the debate between the desirability of using rules as against broad principles both in this country and overseas and I will do that within a very short period.

GUMMOW J: The New South Wales Law Reform Commission looked into this about 20 years ago, I think.

MR WEINBERG: Yes, your Honour, it did.

GUMMOW J: On this specific subject of hearsay.

MR WEINBERG: It did. There is also literature that I am aware of in Canada in which the very question of reform of the law of evidence by legislation, as distinct from common law adjustment to the rules, and legislation of a broad sweeping discretionary kind, as distinct from a set of coherent rules. Codification was addressed. I have in mind a particular article, but I will provide the Court with a few select references to that debate ‑ ‑ ‑

BRENNAN CJ: Thank you.

MR WEINBERG: ‑ ‑ ‑and the reason why we say that, in principle, it is inappropriate to move in that particular direction. It may be that the Canadian courts, recognising this principle, cannot relevantly see a distinction between inculpatory and exculpatory. Once one moves down that track, apart from an overriding concept of fairness and some notion that it would just be unfair to convict a person upon evidence which could not be tested and could not be cross‑examined, but there is nothing so unfair about allowing an accused to rely upon such evidence which the Crown cannot test, but one cannot see any other distinction that can be drawn between allowing the evidence in for exculpatory purposes, but not for inculpatory purposes.

McHUGH J: Mr Weinberg, perhaps one can formulate a narrower exception which would be applicable to this case. The New South Wales authorities are to the effect that once the statement goes in its contents are evidence for the accused as well as against the accused. Now, if that is the case, in a joint trial, if the Crown tenders the statement, why should not its contents be evidence both for the accused and the co‑accused, so far?

MR WEINBERG: Because the evidence was not tendered in the trial of Bannon, it was tendered in the trial of Calder by the Crown, and it could not be tendered in the trial of Bannon.

McHUGH J: I know, but it is a joint trial.

MR WEINBERG: It is a joint trial, your Honour, but there are two trials being conducted jointly, and if we forget that then, again, one is moving towards a very radical reassessment of the special principles that operate when two separate trials are conducted jointly.

McHUGH J: Well, I know that, and in this case you have the situation, there is a statement from the dock, so the evidence was evidence only in that accused’s case, but not against the other accused.

MR WEINBERG: Yes, your Honour.

McHUGH J: But it does seem contrary to common sense in a joint trial that confessional evidence is evidence both for and against a particular accused, but not against the other accused.

MR WEINBERG: With respect, your Honour, it does not strike us as being an affront to common sense, it strikes us as a necessary part of the system of recognising that joint trials are but two separate trials being conducted jointly in the interest of justice.

McHUGH J: But when the Crown case depends on the people acting in concert, it does seem very difficult.

MR WEINBERG: Your Honour, even a case that is put on the basis of concert still involves two separate trials.

McHUGH J: Yes, I know.

MR WEINBERG: I understand what your Honour is saying, but there could have been two separate trials; each trial alleging concert, against each of the accused. That is what happened. There were two separate trials. They were conducted jointly but, in our respectful submission, the fact that they were conducted jointly does not, of itself, affect the operation of the rules of evidence. The jury had to be told to have regard to that evidence which was admissible, in the case of each accused separately, and they were, and they were told in, we would submit, correct terms, by his Honour, that the out-of-court statements made by Calder, in the absence of the accused, were not admissible in the trial of Bannon.

McHUGH J: On a formal analysis you are absolutely correct.

MR WEINBERG: Where does the slippery slope lead, your Honour, is the difficult question?

McHUGH J: Well, I appreciate that, and that is what Lord Reid said in Myers about making exceptions to the hearsay rule.

MR WEINBERG: Yes, your Honour, and I will come to that in just a moment. If I can perhaps move from that general level of abstraction to a point that is still based on principle but one level down from that broader principle, and it is this, that so far as developments have occurred in relation to the hearsay rule, one has the Canadian approach, which seems, if I may put it this way, with great respect to the Supreme Court of Canada, the most radical departure from the traditional view of the hearsay rule, one has also the developments which have been addressed in the United States, where certainly in a number of States there has been modification of the exclusionary rule which prevents third party confessions from being used in an exculpatory way in favour of an accused person.

We accept that, and we have set out a number of the authorities which have shown that development, largely motivated by a belief that what his Honour Justice Holmes said in the case of Donnelly about the illogicality of not permitting this kind of evidence to be received, was regarded as persuasive, so a number of courts have accepted that and developed the common law that way and the rules have provided for such an exception, but we note ‑ we have set out in our submissions that in doing so, no State, no formulation in the United States has ever said, “We will admit, at large, third party confessions”, because that would be sheer madness, in our respectful submission.

The reason for excluding third party confessions was a perfectly sound and solid one. It is a class of evidence which is so potentially fraught with danger that to simply admit it in all cases would be destructive of the manner in which the adversary system operates, the manner in which criminal trials are conducted. So if one wishes to move to a situation where in some cases it may be appropriate to receive such evidence then one needs to set forth limitations, conditions and qualifications, and in our submissions we have summarised a number of the conditions, qualifications and limitations that the American courts have elected to impose upon the reception of this evidence and they pose their own difficulties.

For example, in a number of places the requirement is that there be substantial corroboration as a threshold condition of admissibility, and then one asks the question, “Well, what task is imposed upon the trial judge in determining whether or not there is substantial corroboration in order to justify permitting the evidence to be received?” In this ‑ ‑ ‑

DEANE J: I fully appreciate the force of what you are saying in terms of this case, but just assume that the lady had said, “I stabbed them. That B Bannon not only wouldn’t help me, he wouldn’t do anything. I had to tie him up.” It does really affront one’s common sense if, particularly in the circumstances of the joint trial, the judge has to solemnly sit up and say to the jury, “Look, true it is you heard her say that and true it is you couldn’t get more powerful supporting evidence as a matter of common sense, but you’ve got to disregard it.” It is in that area that one feels very uncomfortable.

MR WEINBERG: Indeed, your Honour.

DAWSON J: It is worse than that because what he says is, “You can use it to convict her, but you can’t use it to acquit him.”

MR WEINBERG: Yes, and not only the Crown are permitted to make that submission, but the defence are permitted to make that submission as part of the defence case. The irony and the interesting feature is that counsel for the defence is perfectly entitled, was entitled and did argue before the jury that those statements assisted him because they had a particular meaning, perfectly entitled to do it and did and showed that as far as the case against her was concerned she did it. Now, I take your Honour’s point.

DEANE J: I mean, in theory one can even envisage circumstances where in a joint trial of two people in circumstances where it was obvious that one or other but not both were guilty, you could get a conviction of both.

MR WEINBERG: Yes, your Honour, you could. Your Honour, the joint trial presents special problems. Unless my friend’s submissions are understood as being confined to joint trials and saying the principle that he contends for is a special principle which applies only in the case of joint trials and that in joint trials the out‑of‑court statement of one accused which is exculpatory of the other may be used. We did not understand him to be putting his argument that way, but we will meet the argument, that that ‑ ‑ ‑

BRENNAN CJ: But that is a chicken and the egg problem then. If you have a joint trial, does the prosecutor have an election whether you are going to present them both jointly, and from the judge’s point of view, does he not have to decide joint trials or not depending upon the state of the evidence that is available? I mean, that is what we have held so far.

MR WEINBERG: Does the accused have a right to ask for a joint trial or to argue for a joint trial rather than separate trials? That is another question that I have not ‑ ‑ ‑

BRENNAN CJ: The whole approach to the question of joint trial or no turns upon the existing rules of evidence.

MR WEINBERG: Yes, your Honour.

BRENNAN CJ: So that one cannot really postulate that we turn it upside down and say, “Well, now there is a special rule in relation to joint trials.”

MR WEINBERG: We would submit that there should be no special rule in relation to joint trials because it would be one that could so easily be circumvented by simply having separate trials and if my answer to Justice McHugh earlier is correct, and I know that Justice McHugh seemed to resist it, but if it is correct that a joint trial is really two separate trials being conducted together, if that be right, then there is no place for a special rule in relation to joint trials.

DAWSON J: Can I take you back to something you said. You would say that Bannon’s counsel could argue that this or these confessions showed that the woman committed the crime and that she did so in a particular way and he could also say, and if you accept that then of course it is obvious that my client is not guilty.

MR WEINBERG: That is exactly what he did in this case. I do say that as to the propensity evidence, it was properly evidence in his trial. As to the confessional material on the way that he used it, there may be a question. I accept that, your Honour. It may be that one has to go through the process of converting it notionally to some kind of relevant evidence rather than strictly positively being hearsay.

So far as moving from the question of principle to the question of rule, it is a difficult concept in this case. One has a principle that one can formulate at various levels of extraction, but then one moves to the question of: a principle is not good enough and one has to formulate a rule. How should the rule be formulated to allow for those cases that cause concern for your Honour Justice Deane and perhaps others of the Court, the very extreme case where one might say there is something very odd or potentially wrong about not enabling a third party confession to be received and those cases which properly call for the exclusion of that kind of material. I was dealing with the United States approach and the requirement of corroboration and I was simply saying that there is a real problem for a trial judge in relation to saying “threshold requirement: corroboration”.

In this country trial judges do not decide whether there is corroboration. Trial judges decide whether there is evidence capable in law of amounting to corroboration. But if this is a threshold question of admissibility and corroboration is required, then the question arises: must the trial judge decide whether there is evidence capable in law of amounting to corroboration and charge the jury, or must the trial judge himself or herself affirmatively decide whether the evidence is corroborated and, if so, to what standard? Does the judge say anything at all to the jury about that? Presumably not, as it goes to the question of admissibility.

One can go through all of the other preconditions that have been established by the American cases. Some of them say that the evidence in question must be truly inconsistent with the guilt of the accused as a threshold matter before it can be admitted. Of course, we submit that this evidence was not in any relevant sense truly inconsistent with the evidence of the accused because, if there is one thing that is not relevantly being said by Calder in these various statements, it is what would need to have been said: “I alone, and without the assistance of Bannon and without any prior understanding that I would do this with Bannon, committed these murders”, not just, “I alone killed the deceased”. It is “I alone, without prior understanding, and I alone, without any assistance of a kind that would amount to aiding and abetting, killed the deceased”.

Then one moves to the nice question that I thought your Honour the Chief Justice was addressing to my learned friend: what is the fact in question that would have to be reliable? In our submission, the fact that would have to reliable is not the “I killed the deceased” but “I alone, without prior understanding and without any aiding and abetting, killed the deceased”. If one then goes back to the requirement of corroboration, what would need to be corroborated is the fact that would have to be reliable. What would need to be corroborated is not the “I killed the deceased”. All the matters that my friend relies upon tend to show that Calder did kill the deceased. It is the other parts of the assertion; it is the “I alone, without prior understanding and without aiding and abetting, killed the deceased” - no involvement by Bannon at all.

There is not a skerrick of corroboration of course for those latter matters in this case, so this would never pass the American threshold test in all those jurisdictions which say there must be corroboration of the fact which must be relied upon. If one then goes to some of the other American criteria, it is a prerequisite that the statement in question must be not only against penal interest in the relevant sense - and the relevant sense has been defined to mean, “I know that what I’m saying is likely to cause me to be incriminated or may lead to my prosecution”. It is more than just saying, “It’s against my sort of interest to say it”.

DAWSON J: Well, where is the disadvantage?

MR WEINBERG: There is not. That is why we say the proviso should be invoked. The missing bit, if I can put it that way, is the bit that his Honour Justice Deane identified. There is a little bit at the corner that Bannon missed out on and the little bit at the corner that he missed out on was having the judge tell the jury that not only could those answers be used in the way that your Honour Justice Dawson has just described, but they could also be used positively to negate the first part of two possible scenarios implicating Bannon, namely that Bannon had killed the deceased, but by arguing that the jury should accept the admissions made by Calder that she had killed the deceased, in our submission, Bannon is, in substance, in reality, getting precisely the benefit that he would have got. There may be a marginal point of differentiation.

DEANE J: Is counsel for Bannon allowed to say anything at all in Calder’s trial?

MR WEINBERG: He did.

DEANE J: Obviously he did, but strictly speaking if the evidence was not admissible and was not in evidence in Bannon’s trial can he say anything about it?

MR WEINBERG: In our submission, he can, your Honour. For example, take the propensity evidence that is led against Calder and properly led against Calder by the Crown. If the Crown is permitted to lead propensity evidence against Calder that is led only against Calder, in our respectful submission, in a cutthroat case as was this type, it is perfectly proper for Bannon’s counsel to say to the jury, “You should acquit my client having regard to all of that propensity evidence that was led in her trial by the Crown because it tends to show ‑ ‑ ‑

DEANE J: I follow the common sense of that but can we just test the logic. The evidence is not in at all in Bannon’s trial, therefore, in Bannon’s trial counsel cannot refer to it.

MR WEINBERG: Yes.

DEANE J: It is in evidence in Calder’s trial that what I was suggesting to you was that counsel for Bannon is not entitled to utter one word in Calder’s trial.

MR WEINBERG: In our respectful submission, counsel for Bannon is entitled to utter that word, the word which says that the evidence presented by the Crown shows that Calder committed this murder. The evidence in Calder’s case called by the Crown, not evidence in our case, but he is entitled to refer to the evidence in Calder’s case.

BRENNAN CJ: Why is that not evidence in Bannon’scase? It is not hearsay.

MR WEINBERG: No, it is not hearsay.

BRENNAN CJ: Why is it not evidence ‑ ‑ ‑

MR WEINBERG: No, it is not hearsay, but it is led against Calder by the Crown as part of the case against Calder.

BRENNAN CJ: Be it so. So far as Bannon’s case is concerned, it is relevant and it is admissible.

MR WEINBERG: Your Honour puts the matter more correctly than I did. I would submit that it is, in fact, relevant to the issues between the Crown and Bannon and it becomes, in that way, part of the evidence upon which Bannon is entitled to rely.

McHUGH J: This is a joint trial on an indictment. It is not as though you are hearing two separate trials together. They are charged on one indictment. It is a trial of that indictment.

MR WEINBERG: Yes, it is a trial of an indictment.

McHUGH J: And, at least in New South Wales, in my experience, nobody ever queried the propensity-type evidence as being evidence that can be used generally. But, I am not so sure about the confessional evidence, that counsel for Bannon can rely on Calder’s confessional evidence to convict Calder. Obviously they did it in this case.

MR WEINBERG: Yes.

McHUGH J: But, take the statement from the dock: that cannot be used by the other counsel, can it?

DAWSON J: No.

MR WEINBERG: It cannot be used in his favour because it is not part of the evidence upon which he can rely, but if the statement made by ‑ if Calder had made a statement from the dock and had told lies, for example, to the jury in that statement from the dock, in our submission, it would be perfectly proper for Bannon’s counsel to say, “We rely upon the fact in furtherance of our own case, that lies were told by Calder”. In the same way, if Calder had fled from the scene, consciousness of guilt, or Calder had told lies to the police, or done any of a number of things that tended to implicate her, if that evidence led in her case by the Crown, assisted Bannon, then it comes, in our respectful submission, properly evidence in his case in so far as it damages her case.

It does not become positive evidence in his case as an exception to the hearsay rule ‑ it does not have to, because he relies upon it as he is entitled to do and as he did in this case.

BRENNAN CJ: Well, that must be only on the basis that it is original evidence and not hearsay. In other words, the fact that she made the statement, as distinct from the contents of it, is relevant to the issues joined between the Crown and himself.

MR WEINBERG: That would be so, your Honour and we say ‑ ‑ ‑

BRENNAN CJ: It seems a very long bow to draw.

MR WEINBERG: No, with respect, your Honour, it is not tendered testimonially by Bannon because he cannot rely on it positively in his case. But it is, in our respectful submission, a matter that he is entitled to rely upon as being evidence in the trial before the jury which ‑ he joins with the Crown. It really becomes a question of each side joining with the Crown in relation to that part of the Crown’s argument that assists the respective accused. This is what happens, in our respectful submission, in cutthroat cases.

BRENNAN CJ: Of course it is. That is why Bannon in this case wanted a joint trial.

MR WEINBERG: Precisely. He wanted a joint trial ‑ he did not oppose it ‑ he wanted it, for a number of reasons. He got the benefit of all this propensity evidence that he might not have been able to lead in this way and the Crown might not have led in his own trial. That is why he wanted a joint trial. And we make that point in our written submissions.

BRENNAN CJ: But that does not say there was a legitimate advantage he was seeking.

MR WEINBERG: I am sorry, your Honour, I missed the last part.

BRENNAN CJ: That does not mean that it was a legitimate advantage that he was seeking, in terms of strict principle. But, we have been through that.

MR WEINBERG: I understand. I will not repeat the argument, your Honour. I think I have said what our response is and it is the best I can do just at the moment in terms of answering the questions that the Court has addressed to me.

I do say that as to the propensity evidence, it was properly evidence in his trial. As to the confessional material on the way that he used it, there may be a question. I accept that, your Honour. It may be that one has to go through the process of converting it notionally to some kind of relevant evidence rather than strictly positively being hearsay.

So far as moving from the question of principle to the question of rule, it is a difficult concept in this case. One has a principle that one can formulate at various levels of extraction, but then one moves to the question of: a principle is not good enough and one has to formulate a rule. How should the rule be formulated to allow for those cases that cause concern for your Honour Justice Deane and perhaps others of the Court, the very extreme case where one might say there is something very odd or potentially wrong about not enabling a third party confession to be received and those cases which properly call for the exclusion of that kind of material. I was dealing with the United States approach and the requirement of corroboration and I was simply saying that there is a real problem for a trial judge in relation to saying “threshold requirement: corroboration”.

In this country trial judges do not decide whether there is corroboration. Trial judges decide whether there is evidence capable in law of amounting to corroboration. But if this is a threshold question of admissibility and corroboration is required, then the question arises: must the trial judge decide whether there is evidence capable in law of amounting to corroboration and charge the jury, or must the trial judge himself or herself affirmatively decide whether the evidence is corroborated and, if so, to what standard? Does the judge say anything at all to the jury about that? Presumably not, as it goes to the question of admissibility.

One can go through all of the other preconditions that have been established by the American cases. Some of them say that the evidence in question must be truly inconsistent with the guilt of the accused as a threshold matter before it can be admitted. Of course, we submit that this evidence was not in any relevant sense truly inconsistent with the evidence of the accused because, if there is one thing that is not relevantly being said by Calder in these various statements, it is what would need to have been said: “I alone, and without the assistance of Bannon and without any prior understanding that I would do this with Bannon, committed these murders”, not just, “I alone killed the deceased”. It is “I alone, without prior understanding, and I alone, without any assistance of a kind that would amount to aiding and abetting, killed the deceased”.

Then one moves to the nice question that I thought your Honour the Chief Justice was addressing to my learned friend: what is the fact in question that would have to be reliable? In our submission, the fact that would have to reliable is not the “I killed the deceased” but “I alone, without prior understanding and without any aiding and abetting, killed the deceased”. If one then goes back to the requirement of corroboration, what would need to be corroborated is the fact that would have to be reliable. What would need to be corroborated is not the “I killed the deceased”. All the matters that my friend relies upon tend to show that Calder did kill the deceased. It is the other parts of the assertion; it is the “I alone, without prior understanding and without aiding and abetting, killed the deceased” - no involvement by Bannon at all.

There is not a skerrick of corroboration of course for those latter matters in this case, so this would never pass the American threshold test in all those jurisdictions which say there must be corroboration of the fact which must be relied upon. If one then goes to some of the other American criteria, it is a prerequisite that the statement in question must be not only against penal interest in the relevant sense - and the relevant sense has been defined to mean, “I know that what I’m saying is likely to cause me to be incriminated or may lead to my prosecution”. It is more than just saying, “It’s against my sort of interest to say it”.

One then comes to the question of how does the trial judge determine whether these statements have that character as a threshold matter to their admissibility, because it has to be remembered that these are statements spoken by Calder to the witness, Duiker, a friend of hers, at the house, with obviously no expectation that Duiker is about to go and ring the police and tell them what has been said or that Calder is going to be prosecuted and these statements are going to be used in evidence against her. So, again, applying that condition as the threshold condition, this case comes no where near the kind of conditions that would be required by the extended exceptions to the hearsay rule, which allow for third party confessions in some cases. It is different from going to the police station and making a full confession, signing the confession and knowing that that is going to lead to you being prosecuted; it has that different character. If there is one thing that Calder plainly did not envisage, or expect, through these conversations, it was that the conversations would have that kind of character. So again it would not pass the American threshold test, and not by a long way, in our respectful submission.

I wanted to address a submission that my learned friend made that there is a direct analogy between confessions and admissions on the one hand and this sort of statement, and he says to the Court if the common law recognises that confessions and admissions are an exception to the hearsay rule because they are presumptively deemed to be true, because people do not say things against interest, they do not confess to crimes unless what they say is true, that is why we receive admissions and confessions, one can accept that as a general proposition. But bearing in mind that the proposition works because the accused can always come along and explain and say, “I did say those things but they were not true.” The difference between applying that proposition and that rationale to this kind of evidence is that, ex hypothesi, you just do not have that situation. The person who made the confession or admission is not relevantly available.

So that all the considerations that go towards saying presumptive reliability, because it is a statement against interest, operate in a quite different way when one is talking about a third party who has made a statement against interest. And we would, with respect, point out that all of the cases that follow Wigmore’s line of saying, it is ridiculous if a statement against pecuniary or proprietary interest is presumptively reliable so also must be a confession, because confessions mean so much more, that sounds attractive at first glance, but there is some sense in thinking about that proposition a little more deeply.

When Wigmore spoke about this matter and wrote about this matter he had in mind, no doubt, a whole range of things that no longer seemed to have so much importance. He had in mind the ancient rules about people making confessions on their death beds about to meet their maker, all that sort of considerations that led to other common law exceptions in the case of dying declarations by deceased persons or victims in cases of murder and manslaughter. But to simply assert that people do not confess unless it is true and therefore it is safe to receive those confessions, even though you cannot test the accuracy and reliability of what is being said, in our submission, requires more careful consideration because people do make confessions which are not true and they make them for all sorts of reasons. They make them because they are habitual confessors. There are people who go around to confessing to crimes they did not commit. There are people who make confessions or confess to criminal activity who are simply mad and it could be said, with some justification, that Ms Calder does not fall far short of that particular description in this case.

The Court will recall that Ms Calder is seized by voices: George is her voice and George tells her to do things, and he tells her what to do and what not to do and George told her to stab herself in the foot and George tells her this and George tells her that. It is a very peculiar thing to say, as my friend does, that what Ms Calder said at the house carries with it the stamp of reliability, when (a) lies are told, plainly, and (b) the person giving this account is, on his own client’s view, mad. And that is the explanation, in effect, that is given by his client, in his defence, as to why Calder committed these very acts. So that is a second point that needs to be borne in mind.

A third reason that people might confess bravado in circumstances where one does not expect the confession to be taken any further, as in this case, because she was speaking to Duiker, she was intimidating Duiker in one sense. One can move to the area of mistake. People may believe that they have committed a particular crime but be under the influence of drugs or alcohol and be wrong about that particular assertion. Again, untestable if third party confessions are simply received in this way. Then one comes to the more obvious examples, the attempt to assist the accused. There are cases where people confess to crimes because they wish to help the accused for all sorts of reasons - they may be members of the family, they may be friends, they may be people who have been prevailed upon, paid, threatened, coerced - to take the responsibility for something that someone else has done.

All of these factors, in our respectful submission, have to be taken into account when weighing the otherwise plausible correctness of the suggestion that people do not confess to something unless it is true and it therefore carries the stamp of reliability. The American cases do not accept that proposition. They do not because they require additional guarantees. If they accepted that proposition, they would require no additional guarantees, in our respectful submission. We come to the question of, “What is reliable?”. Your Honour the Chief Justice addressed that question to my learned friend and that produced a response that if something is regarded by the trial judge as capable of being true then that is sufficiently reliable to pass the relevant threshold test and justifies the admissibility of the confessional statement or admission.

It is a difficult matter, in our respectful submission. In the case of Khan perhaps something was known about the child in question. In other cases where third party confessions are made, how does the judge know whether or not the person making the confession or confessional statement or admission is making a statement which is inherently reliable or potentially capable of being reliable? The whole point of cross‑examination is that it enables an assessment to be made of whether or not what is being said is reliable and that is the very factor that is missing. The Crown has no opportunity to determine, to test, to participate in the process of this prejudgment of potential reliability.

Then one comes to the even more difficult question which I raised at the very outset: what happens if this potentially exculpatory statement is capable of having more than one meaning? Is the judge to tell the jury in effect, “It is a matter for you what this means, but I tell you that if you find that the meaning that should be attributed to it is one which is inculpatory of Bannon, put it immediately from your minds. You may only use it in his favour if you make a finding that it means something that is exculpatory of him.”? We would simply say, borrowing the language of your Honour Justice McHugh, that there would be something in effect unreal about that kind of process and the task that would be imposed upon a jury, already difficult enough in a joint trial, would be made far more difficult, in our respectful submission.

How would the jury deal with these statements made by Calder at the house which my friend says are exculpatory and we do not accept are unequivocally exculpatory at all because they do not bear on their face the meaning that this was done alone by Calder without prior agreement and without any assistance on the part of Bannon, but what about the earlier statement, part of the conversation, where Calder said, “We both went to the house. We were both involved in a knife fight.”? Totally inconsistent with the statement of Bannon. Even if that is not admissible in the case against Bannon, must not the four confessional statements be interpreted by the jury in the light of and in the context of the earlier statement? To the extent that there is some uncertainty of meaning about those four statements, would not the jury have to be invited to consider what meaning to attribute to those statements in the light of what had immediately preceded them or was being said at about the same time?

So, the problems are really far more complex than Wigmore, with great respect to a very great writer in the law of evidence, or doyen of evidence writers, and those courts that have accepted that there should be an exception to the hearsay rule based upon this principle. When one tries to work through what that exception should be, the form it should take, the obligations it should place upon a trial judge, unless one goes the whole route - and perhaps this is what the Canadian Supreme Court has ultimately determined - that it is impossible to do it in a sensible way, piecemeal and, therefore, one has to bite the bullet and either abolish the hearsay rule, in effect, in totality by creating an exception that is very, very substantial and eats into the hearsay rule, or if one wanted to put it another way, an exception which says, “When the rationale for the hearsay is not thought to be present then you just let it in and it does not matter whether it is inculpatory or exculpatory”, unless one wants to go that far, the more limited process is a difficult one.

It is instructive to note that the Law Reform Commission in Australia, the Australian Law Reform Commission and the Evidence Act of the Commonwealth which was recently enacted - I might just pass to the Court copies of the relevant provisions of the Evidence Act 1995.

GUMMOW J: What is the position with adoption of this in States other than New South Wales?

MR WEINBERG: It has not been adopted yet in New South Wales but the indications are that it may well be adopted in New South Wales at some stage in the near future. It has been adopted in the Australian Capital Territory and operates presently in the Australian Capital Territory by virtue of Australian Capital Territory legislation. It operates presently in the Commonwealth sphere. It has got a number of provisions that deal with criminal matters but it would have no application to criminal trials at large throughout other States. It may have an application to criminal prosecutions in the Federal Court. I do not know how they would be characterised, your Honour, trade practices prosecutions and so forth, because there are references in the Act to the rules as they apply in criminal proceedings and it may be that such matters would be regarded as relevantly criminal proceedings.

I agree, with respect, with what was said by my learned friend. There are no clear indications of what is likely to happen to the Act in States other than New South Wales and the Australian Capital Territory. There is, no doubt, a hope that there will be general uniformity at some point of the rules of evidence in this country. But the relevant provisions, so far as third party confessions - the way that it has been tackled by the Australian Law Reform Commission and ultimately by the Commonwealth in this Act is quite interesting but maybe not altogether a happy result for accused persons, because although third party confessional statements are rendered admissible by this Act, as your Honours will see, if your Honours go to section 65(2)(d), that reads:

The hearsay rule does not apply to evidence of a previous representation that is given by a person who say, heard or otherwise perceived the representation being made, if the representation was:
(d) against the interests of the person who made it at the time it was made.

So one will have to construe that language.

DAWSON J: (c) is even better or worse, according to how you view it.

MR WEINBERG: The point, your Honour, is that this applies both inculpatory and exculpatory. These new exceptions to the rule apply in criminal trials and allow the Crown to seek to lead hearsay in circumstances where the statement which may implicate the accused, was made by someone not called as a witness, but the statement was against the interests of the person who made it at the time it was made. That is defined in subsection (7):

Without limiting paragraph (2)(d) -

that is not a complete definition -

a representation is taken for the purposes of that paragraph to be against the interests of the person who made it if it tends:
(a) to damage the person’s reputation;

an extraordinarily wide definition -

(b) to show that the person has committed an offence for which the person has not been convicted; or
(c) to show that the person is liable in an action for damages.

Then one goes to the safeguards. The safeguards are set out in section 67 and the way the Act deals with safeguards are firstly to require notice to be given by a party who intends to rely upon this kind of hearsay and also, in section 61, the requirement that you cannot use a previous representation under this part unless the person who made it would have been competent to give evidence about the fact. It is a general competence requirement and the only safeguards for the accused are those discretionary safeguards which are to be found in the Act where the trial judge is given statutory discretions.

BRENNAN CJ: Is the hearsay rule defined in the Act?

MR WEINBERG: Only in section 59, your Honour:

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.

BRENNAN CJ: But, that is not defined as being the hearsay rule for the purpose ‑ ‑ ‑

MR WEINBERG: That is a statement of the hearsay rule as it now operates under the Part. Then section 60 ‑ ‑ ‑

BRENNAN CJ: I see. The heading identifies it as the hearsay rule.

MR WEINBERG: Yes, your Honour. I imagine one is entitled to ‑ but language that has been used, “previous representation” is new and no doubt chosen for whatever reasons the draftsmen ‑ your Honour Justice Dawson is shaking your head. I hope I have said nothing to offend.

DAWSON J: I am not disagreeing with what you said.

MR WEINBERG: But, that is the way in which this legislation has attacked the problem. With respect, there is one aspect of it that is entirely sound and satisfactory and that is the requirement that notice be given. If one is to rely upon an out of court confession which is exculpatory, it seems inconceivable that one could ambush the Crown by suddenly producing it at the end of the case in circumstances where the Crown would have no opportunity even to investigate anything about the circumstances in which the particular statement was made.

Your Honours, I have said enough about the various difficulties associated with recognising this new exception to the rule and may I now say something about the wisdom, or lack of wisdom, of the Court embarking on the task of reformulating this exception. It is our submission that whether Parliament does it well or whether Parliament does it badly, at the end of the day, it is better that Parliament do it than that the Court do it, for a number of reasons. One of them is that there really do have to be a series of quite specific procedural safeguards imposed if the exception to the hearsay rule is to be widened and it is not, in our respectful submission, desirable that the Court, in laying down broad principles condescend to articulating what safeguards and what procedural requirements should be met before the evidence in question is admissible.

In our respectful submission, the American experience has not been altogether a happy one in terms of laying down threshold requirements and it is very much a matter that we submit requires a balancing between the rights of the accused in those cases that your Honour Justice Deane is concerned about and rightly, if we may say so with respect, concerned about. But, they would be very rare cases and the wisdom of retaining a general rule which operates clearly and well to exclude evidence from the consideration of a jury which really should not be before a jury.

It is our respectful submission that the Court should decline the invitation that our learned friend has extended to the Court to emulate what the Canadian Supreme Court has done in terms of virtually emasculating the hearsay rule. We do not think we are overstating it to say that that is the effect of the decisions of the Canadian Supreme Court.

DEANE J: They do not seem to have gone as far as section 65(2) of this Act has gone.

MR WEINBERG: Your Honour would have to balance what is set out here. I have not included the statutory discretions, and your Honour would have to - to get a full picture of the way the Act operates - and it would be quite misleading to think that the Act provides no protection for an accused. There are discretions. The traditional discretions are preserved in statutory form and the unfairness discretion is preserved, the probative value/prejudicial consequences discretion is preserved. I am sorry I have not copied those for your Honour, but they are readily found in the Act. I think they are sections 135, 138 and I think section 90 that contain the relevant discretions.

DAWSON J: There is no discretion particularly with regard to hearsay.

MR WEINBERG: None specific to hearsay, no, your Honour.

DAWSON J: Just the ordinary discretions expressed - - -

MR WEINBERG: Just the ordinary discretions, yes, your Honour.

DAWSON J: And where the draftsman conceives them to be.

MR WEINBERG: Yes, your Honour, that is so. I want to then, moving from the general very briefly to move to the particular. I wanted to refer to only one case specifically amongst those that we have set out. It is a case that, in our submission, is very pertinent to the appellant’s submissions. It is Commonwealth v Colon (1975) 337 A 2d 554. It is a decision of the Supreme Court of Pennsylvania and it is a decision that, with respect, requires careful examination.

In Colon’s Case, Colon was tried for murder and other offences and, as the Court will see at page 555, he raised a single issue:

whether the trial court improperly excluded from evidence the confession of one Jose Hernandez in which Hernandez admitted killing the victim while acting alone.

I stress “alone” because there was present in this case something that was clear and is not present in the case of Bannon, the appeal before the Court - unequivocally a statement that Hernandez had acted alone.

It was argued by the appellant in that case that he was entitled to rely upon Hernandez’s statement, notwithstanding that it was hearsay, because it was a declaration against penal interest and therefore admissible. The Court will see at page 556 the statement in question set out:

“I was alone. I went there alone and came out alone.”

In the left-hand column on that page, half‑way down:

At trial, the Commonwealth proceeded on the theory that both appellant and Hernandez were responsible for the murder.

Very much like Bannon’s Case. The Crown did not accept Hernandez’s admission.

To establish this theory, the Commonwealth introduced into evidence appellant’s confession -

he also confessed but his confession said that he and Hernandez had acted together in concert -

and the testimony of an alcoholic shopkeeper who testified that he overheard appellant discussing the murder with Hernandez.
Appellant’s defense strategy was to establish that Hernandez had acted alone. Appellant took the stand and testified that he had been coerced into signing a statement prepared by the police. The defense called Hernandez -

Hernandez was a competent witness for the defence, though not compellable -

and questioned him about the murder and his confession. Hernandez, however, asserted his constitutional privilege against self‑incrimination and would answer no questions. At the end of the presentation of evidence appellant moved that Hernandez’s confession be admitted into evidence.....the motion was denied -

If one goes to page 557, one will see the discussion of principle. Then, about a third of the way down 557 in the right-hand column:

Hernandez’s confession to the police was clearly against his penal interest. However, this does not resolve the controversy for as Wigmore states:

“It must be remembered that it is not merely the statement that must be against interest, but the fact stated. It is because the fact is against interest that the open and deliberate mention of it is likely to be true. Hence the question whether the statement of the fact would create a liability is beside the mark.”
[1] We conclude that the fact stated in that portion of Hernandez’s confession which exculpated any possible accomplices was not against interest and hence that portion was inadmissible. By telling the police that he acted alone, Hernandez admitted no additional crime, subjected himself to no additional punishment. Since it was not contrary to Hernandez’s interest to assert he acted alone, the portion of the statement in which he claimed to have acted alone does not have the safeguards of trustworthiness attributed to a statement truly against interest. On this basis, the trial court’s decision was correct as to this part of the statement.

And then the court cited a number of other American case which had adopted exactly the same approach Now, that must with respect, upon analysis, be correct, and it is the critical fact, therefore, that the appellant relies upon in this case; the assertion that Calder had acted alone, he says. We deny that it is to be found there, but he says. But even if it be there, it is not against interest, and therefore the entire principle that my friend relies upon is undercut because the rationale, which was so clearly expressed by Wigmore, is not present in this case in any event. That is why we submit that the case is relevant and important.

The final matters that we wish to address really are the question of the proviso and the question of what should occur in the event that this Court is against us and finds that what the trial judge did, although no doubt the Court would say, in deference to the fact that the Court would be changing the law, it may have been regarded by the trial judge reasonably as correct at the time that he did it, and in line with established authority, in fact did not represent the law as now declared by this Court. But, if the Court took that view and redeclared the common law, and said that the trial judge should not have done what he did, then the question is, “What did the trial judge do that was so wrong that it amounted relevantly to disadvantage and miscarriage of justice?” And that requires just a moment or two of the Court’s time, if I may, to look at what the trial judge actually told the jury in relation to these various matters.

GUMMOW J: Can I just interrupt you for a minute, Mr Weinberg; those sections you are looking for, I think, are sections 90 and 135 to 137.

MR WEINBERG: Thank you, your Honour, I was wrong by one, I think. I think I said 138, but that is right.

Your Honours, the only point ‑ the only time ‑ in this entire charge to the jury ‑ and I distinguish the charge to the jury from the discussions that were had with counsel ‑ in which his Honour actually said to the jury words that could be construed as meaning, “You may not use Calder’s out of court confessional statements or admissions at the house positively in favour of Bannon”, is in about seven words at the bottom of page 450 of the appeal book, and your Honour will there see this paragraph at lines 27 onwards:

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.

And then the general statement follows:

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.

That is what was said. That is all that was ever said in terms of not using Calder’s statements in the house positively in favour of Bannon. On every other occasion where his Honour charged the jury about out of court statements, or admissions made by one accused out of court ‑ statements against interest out of court ‑ what his Honour said was, “You may not use those statements against the other accused”. On every other occasion the word “against” was used every other time. It is only in this one general statement, at the bottom of page 450, that his Honour actually told the jury in that general way, that it:

is not evidence in the trial of the other accused.

He did not say to the jury, “You may not use it in his favour”, because, in fact, it was used in favour of Bannon, and his counsel relied on it, and I will take the Court in a moment to that passage.

McHUGH J: If you read it literally, since these statements were made, were they not, some of them, at least, were made in the presence of Bannon?

MR WEINBERG: One of them was made in the presence of Bannon. I do not know whether it matters very much, but we do not see there being four confessional statements anyway. Our view is that there are actually two, but there is overlap between them, but it does not matter for present purposes. One of them was certainly made in the car in the absence of Bannon; one of them, the one that Goodman testifies about, was made in the presence of Bannon on his account, and that is the one that began with the word “fuck” that your Honour identified earlier.

McHUGH J:Yes.

MR WEINBERG: But that may be the same statement against interest as Duiker identified, but Duiker did not say that it was in the presence of Bannon, so it may be the same statement. But whether there are two or whether there are four does not matter for present purposes. The fact of the matter is that that is what his Honour said and that is all that his Honour said, and that is putting the matter at its highest.

If one goes to the way that Mr Langslow, who appeared for the appellant Bannon, presented his client’s case, at page 487. If one looks at lines 21 onwards:

Mr Langslow asked for a not guilty verdict for his client ‑ ‑ ‑

DEANE J: Sorry, what page is it?

MR WEINBERG: Page 487. I am reading from lines 21 onwards, to give the context, but the actual passage is from line 31 onwards on page 487. Perhaps I will not read lines 21 to 30, but ask the Court to read them. That is part of the way that Mr Langslow put the case on behalf of Bannon - but
line 31 I will read:

He also sought to rely upon admissions made by her in the videoed interview and to Duiker and to Goodman, all in an endeavour to

advantage Bannon and to make it seem less probable that Bannon could have carried out these murders.

He relied on these admissions, the jury knew that he was relying upon these admissions, the jury knew that he was relying upon them to convey the meaning that she, Calder, had acted alone. That would be the only reason that he would rely upon these admission - the very argument that my friend has advanced here.

DEANE J: Were these aspects pointed out to the Court on the special leave application?

MR WEINBERG: I was not present, your Honour, my learned junior was. I am not seeking to have special leave revoked in terms, your Honour, I am addressing the question of proviso, at this stage, as your Honour will appreciate, but there was much that could have been said in opposition to special leave being granted in the particular circumstances of this case, and of course it is a matter for the Court, but there are certainly features of this case that one would have liked to say do not render it a particularly suitable vehicle for the grant of special leave. No exception was taken to the charge in this respect, although the point had been debated by Mr Langslow earlier and a ruling had been made against him, so that really does not matter.

But then one asks oneself: what difference did it make, or could it have made a difference, to the jury that instead of having Mr Langslow simply rely upon the out-of-court admission - this is not a case where the defence was denied the jury knowing what was said, the jury knew full well what was said and Mr Langslow relied upon it. And what took the sting out of that reliance - and the essence of the complaint has to be the one line at the bottom of page 450.

Now, in our respectful submission, it is perfectly proper of the Crown in those circumstances to say that even if the law has been misapplied then so far as the circumstances of this case are concerned a different direction saying, “You may use it. You may use those answers positively in the case of Mr Bannon,” inevitably would not have made a difference. The result would have been the same, in our respectful submission, and that is why we do invite the Court to invoke the proviso in the event that the appeal is otherwise successful. If the Court pleases, those are our submissions.

BRENNAN CJ: Thank you, Mr Weinberg. Mr Holdenson.

MR HOLDENSON: Just three very short matters, your Honour. Your Honour Chief Justice Brennan asked a question concerning declarations against pecuniary or proprietary interest and whether or not it was a requirement in this day and age in so far as that exception to the hearsay rule was concerned that the declarant be dead. Cited in paragraph 33-035 of the loose leaf service of Cross on Evidence there are some cases cited to the effect that the declarant may be a person still living at the time of the suit. The second matter is this ‑ ‑ ‑

DEANE J: In terms of the extension you would seek to the statements against proprietary interest and deceased, would the fact that the maker of the statement refuses to answer questions on the grounds that the answer may incriminate him or her satisfy the substitute requirement of deceased on your approach?

MR HOLDENSON: In my submission, yes, because the requirement is practical unavailability and in those circumstances the witness is practically unavailable, but I must indicate this to your Honour, I am unaware of any case which is concerned with that factual situation.

DEANE J: We would soon become aware of some with the gaol confessions that are so common, if the confession could be made, the witness refused to answer on the grounds of incrimination and then the confession repudiated immediately after the acquittal.

MR HOLDENSON: Yes. Now, the second matter is in so far as my friend relies upon the American case of Colon, it is submitted that the reasoning of the Court to say the least is artificial. The entirety of the statement must be considered. It is artificial to look at phrases or sentences within the one paragraph, for example, and in any event that case is not consistent with the Canadian authorities.

The third matter is this: in response to some questions put to me, I may not have done the appellant’s case justice. Some questions were put to me concerning the case for the Crown and whether or not there was any evidence upon which the Crown could or did rely in order to say that the appellant, Bannon, himself took part in the killing as in, for example, a person who did some stabbing. The answer is: there is some evidence. It is to be found ‑ and I will just cite to the Court the references - in volume 3 of the appeal book at page 456, at line 25, which is within his Honour’s charge and perhaps if I just identify that portion to your Honours:

The Crown says you should infer that he ‑

Bannon ‑

lied out of a consciousness of guilt, that he knew he injured himself holding a knife in the house, a knife similar to the knife that killed the two victims. Mr Ray ‑

senior counsel for the prosecution at the trial ‑

suggested to you the possibility as to how Bannon cut his fingers when he put a question to Dr Collins. You could infer that is how Bannon hurt himself without reference to Dr Collins’ opinion.

Dr Byron Collins was a witness called on behalf of the accused, Bannon, as he then was and he was cross-examined by the learned prosecutor, Mr Ray. The relevant passages in the cross-examination appear at the foot of page 323 of the second volume of the appeal book, to the head of 324 and at the very foot of page 324 to page 325. That evidence was summarised within the learned trial judge’s charge to the jury at page 475 where his Honour stated, and I quote from page 475, line 8:

Then he was asked to use a knife in his hand and Mr Ray, in the course of cross-examination, suggested that Bannon could have cut his fingers by stabbing with the knife and the blade breaking off, and Dr Collins said that was possible.

And, in so far as the Crown case was concerned, in his Honour’s summary of that case at page 485, again within the charge to the jury, at line 20 his Honour said:

The injuries to the two victims, Mr Ray argued, are consistent with two knives being used; Woodfall being stabbed by a blade the width of the blade in Calder’s foot, and Armstrong being stabbed by another blade after he had been beaten and tortured, and the blade in the Rodeo car found on the passenger side of the dashboard may have caused Bannon’s hand injury and been used to kill Armstrong.

Save as to those three matters, issue is joined with that which was put by my friend, Mr Weinberg.

BRENNAN CJ: Thank you, Mr Holdenson. The Court will consider its decision in this matter.

AT 12.24 PM THE MATTER WAS ADJOURNED

[1995] HCATrans 146

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