Bannon v The Queen

[1995] HCATrans 144

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 WEDNESDAY, 31 MAY 1995, AT 3.09 PM

Copyright in the High Court of Australia

MR O.P. HOLDENSON:   May it please the Court, I appear on behalf of the appellant.   (instructed by James C. Galatas, Acting Director of Legal Aid Commission (Victoria))

MR M.S. WEINBERG, QC:   May it please the Court, in this matter I appear together with my learned friend, MR P.A. COGHLAN, on behalf of the respondent.   (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

BRENNAN CJ:   Mr Holdenson?

MR HOLDENSON:   A little earlier this day, an outline of submissions was filed with the Court Crier on behalf of the appellant.

BRENNAN CJ:   Mr Holdenson, your summary of argument, of course, covers a lot of factual material and a lot of argument as well as the essential point, but the basic point is that which is raised in your notice of appeal, is it not, and that is what you got special leave to argue?

MR HOLDENSON:   Yes.  Special leave was granted in December in respect of what might be called the third party confession, that is, the confessions by Calder to people within an hour or so of the murders, to the effect that she alone ‑ or at least it was open to interpret what she has said to be ‑ that she alone had killed each of the two deceased and the refusal of the learned trial judge to permit the jury to take that evidentiary material into account in its consideration of the case against the appellant, as he now is, Bannon.

BRENNAN CJ:   The question is whether or not confessional statements of that kind are admissible in favour of an accused.

MR HOLDENSON:   Correct.  The facts giving rise to this appeal can be very shortly stated.  It was common ground at the trial that two people late one night were murdered.  An hour or so later the two people who were present at the scene of the murders, namely the appellant and his co‑accused at trial, namely Calder, attended upon the occupants of a farmhouse.  It was there that Calder said that “She, not we, had killed” or “could have killed the two victims”.  Subsequently, one of the occupants of that house, Duiker, drove Calder to Calder’s home and during that car trip Calder said that “She - again not “we” - “could have killed two people but it didn’t matter, it wasn’t a worry, for prison meant nothing to her”.

At the trial the Crown alleged that the two accused had either acted in concert or, alternatively, one had aided and abetted the other.  As a consequence, the learned trial judge very carefully directed the jury that for the Crown to make out its case, the jury had to find as a fact concert or agreement or, alternatively, aiding and abetting.  His Honour gave the jury certain directions as to how it was that they might draw inferences in order to make or reach such a finding.

So the learned trial judge left it open to the jury as a factual scenario or option that only one accused had committed the two killings while the co‑accused was not in any way a participant.  That was the appellant’s defence at the trial, namely he was merely an immobilised or incapacitated eyewitness to the killings which were carried out by Calder acting alone.  He was incapacitated, he said in his unsworn evidence, by reason that he had been tied up by Calder and so he was nothing other than physically present.  He was prevented from being a participant.  In his charge to the jury the learned trial judge said that if the jury found that account to be possibly true, then the appellant Bannon was to be acquitted on each of the two counts.

The Crown case against Calder was based upon the admissions or confessions by Calder at the farmhouse and certain circumstantial evidence and the Crown case against Bannon was based on circumstantial evidence.  At the trial counsel for Calder challenged in a very limited way those confessions attributed to Calder.  In so far as the three confessions to the witness Duiker were concerned, counsel for Calder challenged one of them and only in so far as he said that she got the words mixed up and what Calder had really said to Duiker in so far as one of those three confessions was concerned was that somebody might have been killed.

The witness Goodman was challenged by counsel for Calder.  It was put to him in cross‑examination that he was intoxicated, that he had never heard Calder speak and his account was false and, further, Goodman’s character was attacked.  In any event, neither of those witnesses retracted or qualified what they said in cross‑examination and there was no evidence to the contrary from Calder because, of course, she stood mute.  The crux of the appellant’s complaint in this Court, as I have indicated already to your Honour Justice Brennan, is that the jury ought to have been permitted to use those confessions of Calder, expressed as they were in the first person singular, in its consideration of the case against Bannon.

Now, it is trite law that as an exception to the hearsay rule the cases indicate that a confession is receivable against the maker of the confession where the maker is a party to the litigation and it is also trite law that the cases indicate that a third party declaration against pecuniary or proprietary interest is also admissible in litigation no matter what the identity of the parties.  The effect of a judgment of the court below is that the court below refused to extend those narrowly‑confined exceptions to the instant case. 

If I could take the Court now to page 4 of that outline, in particular paragraph 13.  Paragraph 13:  each of the confessions was on its face voluntary, spontaneous, unequivocal and inherently reliable and it is submitted that in the light of the appellant’s defence, as I have already indicated to your Honours, evidence of the confessions was both relevant and particularly valuable.

Calder stood mute at her trial, she therefore could not be cross‑examined by counsel for the appellant and Calder could not be called as a witness by and for the appellant by reason of the prohibition in the Crimes Act.  The court below held that the learned trial judge was correct in ruling that the evidence of these confessions of Calder was not admissible in the trial of the appellant because such use of the evidence would infringe the hearsay rule and is, as then set out, it is submitted that the court below has erred.

If I could take the Court now in detail to paragraph 16 point 1 at the foot of page 4 of that outline.  It is submitted that evidence of this nature, even if technically inadmissible as hearsay evidence, ought to be admitted at the instance of the defence.  After judgment was delivered in this matter by the court below, the decision of Zullo, a decision of the Queensland Court of Appeal was reported.  If I could take your Honours to Zullo (1993) 2 Qd R 572, again the facts can be shortly stated. In the trial of Zullo, the Crown actually led evidence of a confession by Beard, such confession having been made to an undercover police officer.

GUMMOW J:   But does Zullo really say very much in terms of discussion of principle?

MR HOLDENSON:   No.

GUMMOW J:   That is what I thought.

MR HOLDENSON:   Nevertheless, reliance is placed upon it as demonstrating a shift in what, in my submission, is an artificial confining of the exceptions.  Beard subsequently withdrew the confession, saying that Zullo was the killer.  Beard was called at the trial and claimed privilege against self incrimination.  As I indicated to your Honours, the evidence was led by the Crown in that case and the issue on appeal was as to the adequacy of the directions to the jury and as to that confession by the learned trial judge.

If I could take your Honours to page 574 within the joint judgment of the Court of Appeal, at line 21 there is the following passage, and I quote:

It should be noted that there is authority of some strength in favour of the view that Hassan’s evidence that Beard had confessed to him was not admissible at the instance of the defence: Blastland,(1986) AC 41 at 52, 53 Re Van Beelen, (1974) 9 SASR 163 Donnelly v United States, 228 US 243 but one must respectfully agree with the comment of the learned authors of the Australian edition of Cross on Evidence, that there is “much force in a remark made by Holmes J., who dissented in the American case -

And I might indicate to your Honours that two other members of that court agreed with Mr Justice Holmes, namely -

‘The exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder; it is far more calculated to convince than dying declarations, which would be let in to hang a man;...’”

Then there is reference to the Queensland decision of Condren which:

illustrates the importance which, as a practical matter, a confession by a person other than the accused can have in determining whether to convict:  The confession made by Beard was, in our opinion, to be considered by the jury for what they thought it was worth, and may very well have inclined the jury towards a “not guilty” verdict, even if they were by no means convinced that it was truthful.

It is submitted that as a matter of general principle such an approach accords with common sense, namely the evidence ought be admitted and as to the weight to be attached to it, well, that is a question for the tribunal of fact.

If I might then take the Court to another decision which, as I have indicated clearly I trust on the outline, a decision of the English Court of Appeal, where evidence of a third party confession was admitted, or at least considered by, in that case, the English Court of Appeal, albeit in a different context.  That is the case of R v Beckford & Daley, an unreported decision, which I provided to the Court some weeks ago at the point in time when I filed the list of authorities.  In that case ‑ ‑ ‑

GUMMOW J:   Would you be allowed to cite this in England?

MR HOLDENSON:   I do not know the answer to the ‑ ‑ ‑

GUMMOW J:   Other than by leave?

MR HOLDENSON:   Well, I do not know whether or not one could ‑ ‑ ‑

GUMMOW J:   Well, I do not think you would be.

MR HOLDENSON:   Well, if leave be required, I make an application for that leave in this Court.  In any event, it has been discussed in a number of cases.

BRENNAN CJ:   It now seems to be in (1991) Crim LR 833.

MR HOLDENSON:   Well as I understand it, your Honour, that is the Criminal Law Review, and all that is set out there is a very brief summary of the case, and a discussion by the learned author as to the effect of the case, but it is certainly not set out in any great detail.  In that case, Correia confessed to the police to killing one Johnson.  The learned trial judge ruled that confession inadmissible, and then Correia stood mute at the trial.  Further, the trial judge refused to allow Daley’s counsel to adduce in evidence, through cross-examination of police officers, evidence of that confession.  I suppose it goes without saying that the defence of both Correia and Daley was that the other had stabbed the victim.

As is apparent from pages 8 and 9 of that judgment, and I do not propose to take your Honours through the reasoning at this point, the trial judge in that case determined that the confession was not admissible by reason of the hearsay rule; reference was certainly made to Blastland.  Nevertheless, the English Court of Appeal considered the confession in a different context, namely, in its determination that Daley’s conviction for murder was unsafe and unsatisfactory, and as a consequence quashed that conviction.

If I could take your Honours to the foot of page 11 of that case, in the final paragraph, Mr Mylne, who appeared on behalf of Daley:

Mr Mylne’s final ground is more troublesome and has caused us a good deal of anxiety.  We have examined, as Mr Cocks -

he appeared on behalf of the Crown -

urged us to do, the cogency, as he put it, of the evidence which tended to show that it was Daley and not Correia who struck the fatal blow.  Medical evidence was of no assistance upon this issue.  That evidence, we grant, could be said to support the jury’s finding.  But how would that have been regarded had Correia’s confession been before the jury?

We think it is possible, if not probable, that it would have been far less well regarded than it obviously was.  Indeed, it may have been that Correia would have been convicted and Daley acquitted.  No consideration was given to him having acted in concert with Correia.  As we have said, the hearsay rule, sound though it is when usually applied, is capable sometimes of obscuring - shielding even - the truth.  It may have done so here.

And in the very next paragraph the court concludes that the conviction of Daley for murder was unsafe and unsatisfactory and had to be quashed.

Now, as I have set out on the outline, albeit in a different context, nevertheless a third party confession was considered and was accepted.  Your Honours will next see on the outline of submissions, reference to two recent decisions of the New South Wales Court of Criminal Appeal.  I do not propose to take your Honours to those cases in any detail other than to say this: as to the decision of Greatorex in that case the court expressly stated that it did not find attractive the approach of either the Queensland Court of Appeal in Zullo or, for that matter, the English Court of Appeal in Beckford v Daley.  Then, in the subsequent decision of Abernethy ‑ again a copy of that having been provided to this Court some weeks ago ‑ the case of Abernethy was considered, by reason of the facts of that case, simply not to be a suitable vehicle for a further consideration of the issue; in respect of which it was acknowledged by the members of that court that the authorities were not entirely consistent.

GUMMOW J:   That is perhaps why you got special leave, Mr Holdenson.  But sooner or later, and one hopes sooner, we have to get to the principle involved; that is why we are here.

MR HOLDENSON:   I am about to take your Honours, in my submission, as to what ought to be the guiding principle, and that is to be found in paragraph 16.2, which makes reference to recent statements of this Court which, in my submission, are to the effect that the hearsay rule ought not be applied inflexibly.

McHUGH J:   That does not tell you anything about how you decide to apply it in a particular case.

MR HOLDENSON:   Well, in circumstances where there is an indication, or there is evidence to the effect that the subject evidence is reliable ‑ inherently reliable, inherently trustworthy, whatever the test be - and in circumstances where the evidence can only be led in a hearsay form, it is submitted that the evidence, albeit hearsay evidence, ought be admitted into evidence for any one of a number of reasons.

McHUGH J:   But the exceptions to the hearsay rule may be regarded as reliable, but the reliability is concerned with categories; not concerned with individual cases.  You do not say, “Is this evidence reliable in this particular case?”, because it is a declaration against interest or this.  It is a category that tends to be reliable and you seem to want to apply it to any particular case ‑ give a judge a general power to determine in any case whether he or she thinks the evidence is reliable.

MR HOLDENSON:   Might I say this, your Honour.  In so far as categories are concerned, the declaration against a pecuniary or proprietary interest category has been enlarged in Canada and in America to take into account declarations against penal interest.  So, if a category basis were to be adopted, then the appellant is content with that.  However, if I might take your Honour just for one moment to 16.10 of the outline where there is reference to a very recent line of Canadian cases commencing in 1990 with Khan, a decision of the Supreme Court of Canada, what has occurred in Canada, in my submission, is that there is very much a non‑category basis being adopted by the courts, namely, if it can be demonstrated that the evidence is, for want of a better expression, prima facie reliable and it is necessary to lead the evidence in hearsay form, then it is to be admitted.  Khan and Finta clearly indicate that.

TOOHEY J:   I am trying to identify how broad the scope of the exception for which you contend is, Mr Holdenson.  You have spoken of third party statements, you have spoken of a co‑accused, you have spoken of a situation in which the only way in which the evidence can be adduced is by hearsay evidence.  Each of those could be formulated as a principle in some different way.  Is the principle for which you contend one in which the only way in which the evidence can be adduced because, for instance, it comes from a statement of the co‑accused, that it ought to be admitted in those circumstances, or is it some broad proposition that third party statements exculpatory of the accused ought to be admitted as an exception to the hearsay rule?

MR HOLDENSON:   The primary submission in effect is that exculpatory statements ought be led in a criminal trial at the instance of the defence.  That can be done in one of two says:  by adopting an approach similar to Zullo or Beckford and Daley, or it can be done by enlarging the declaration against a pecuniary or proprietary interest category.  The secondary submission on behalf of the appellant is this, and it is what has been set out in the Canadian cases to which I made reference in discussion with Justice McHugh.  Those authorities are to the effect that hearsay evidence, that is evidence which has traditionally been called inadmissible hearsay, if it satisfies those two requirements, it can be led in a trial by the Crown in order to convict an accused or it can be led at the instance of an accused as exculpatory evidence.  In Khan the evidence was hearsay evidence led by the Crown in order to convict an accused.  In Finta it was in part triple hearsay evidence led by an accused person in a war crimes prosecution.

TOOHEY J:   When you put it that way, you do not seem to be limiting yourself to a situation where, because the statement is made by a co‑accused, the only way in which it can be got, short of cross‑examination if the co‑accused gives evidence, is by relying upon the hearsay statement.  But, you are casting your net rather more widely, as I understand it.

MR HOLDENSON:   I am attempting to cast it narrowly and, if in casting it narrowly, that is not attractive to the Court, then the alternative submission is the ‑ ‑ 

TOOHEY J:   It is not a matter of whether it is attractive or not, it is a matter of understanding how narrowly or how widely the principle is asserted.

MR HOLDENSON:   I am content to assert the principle in narrow form because that would be sufficient, as I understand the case, for the appeal to be granted and not make any wide‑ranging changes to criminal procedure.

McHUGH J:   It would make a very substantial change, would it not?  You would have to have a voir dire in respect of this issue of reliability, in respect of every witness who was called to give hearsay evidence.

MR HOLDENSON:   In my submission, not in this case, your Honour.  In this case, the evidence was already there;  the evidence was relied upon by the Crown in order to prove the case against Calder.  It was not challenged in any real way by Calder.  It was, on its face, as I have set out in paragraph 13, spontaneous.  There was no suggestion that it was only in response to leading questions.

BRENNAN CJ:   But, Mr Holdenson, the question was, what change would it make to criminal practice.  That depends on the answer you give to what the rule should be.

MR HOLDENSON:   In my submission, it would not necessarily make any change to the admission of a third party confession, or a third party declaration against penal interest, would make no significant change to criminal procedure.

BRENNAN CJ:   You would not be putting it as broadly as that, would you?  Any declaration by a third party against penal interest.  You would not, for example, suggest that that should be admitted when the statement also inculpates the accused?

MR HOLDENSON:   No.

BRENNAN CJ:   Then what are the limits of the submission that you are making in terms of principle?

MR HOLDENSON:   I am confining it to exculpatory statements in the same way that the Canadian courts have done so in respect of declarations against penal interest.  The Canadian courts have confined the admission of such evidence in situations where the statement is entirely exculpatory of the given accused or, alternatively, it is a mixed statement, for example, there was an assault but acted in self‑defence, but have prevented the Crown from relying upon such evidence in order to assist its case against an accused by reason of the case of Pelletier as authority for the proposition that that would be unfair to an accused person to lead evidence in that way or to have such evidence admitted against an accused.

So the submission is confined to exculpatory statements whereby the accused seeks to have them led.  There may be some situations, which do not immediately come to mind, whereby a statement would be exculpatory but a given accused would not desire that piece of evidence to be led in the trial, albeit on one view in his favour or her favour, but if regard is to be had to those Canadian cases then the evidence ‑ ‑ ‑

BRENNAN CJ:   What do you say, that the evidence is any evidence which exculpates the accused, either in respect of the act done or the circumstances in which it is done, provided the accused wants the evidence in?

MR HOLDENSON:   Yes.  Now, it is my submission that that line of cases is consistent with the fairly recent statements of this Court in Walton, Benz and Pollitt, and if I might briefly take your Honours to those statements.  First, Walton (1989) 166 CLR 283 and if I could take your Honours to a short passage in the judgment of Chief Justice Mason. At page 293 at the head of the page, the first paragraph:

The hearsay rule should not be applied inflexibly.  When the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule.  Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay.  It must be borne in mind that the dangers against which the rule is directed are often very considerable, as evidenced by the need for the rule itself.

And then there is a discussion in so far as it applies to implied assertions.

DAWSON J:   That is an individual view really, is it not, Mr Holdenson?

MR HOLDENSON:   That is correct, although there is a similar view, in my submission, in the judgment of Justice Deane and then subsequently in the cases of Benz and Pollitt.  If I could take your Honours briefly to the judgment of Justice Deane at page 308 in the very middle of the page, point 5 of that page:

If the hearsay rule were to be inflexibly applied, it would preclude the identity of the other party to the conversation being established by contemporaneous statements of the first party even though made in the course of the actual conversation.  The hearsay rule should not, however, be inflexibly applied but should be qualified where the circumstances are such that its inflexible application would confound justice or common sense or produce the consequence that the law was unattuned to the circumstances of the society which it exists to serve.

McHUGH J:   Yes, but that was an introduction to a passage that goes on further which was dealing with a category.

MR HOLDENSON:   That is correct and then there is a discussion in so far as telephone conversations are concerned.  There are similar dicta, in my submission, in a number of the judgments in Benz and I have identified them on the outline, but if I might take your Honours to the third of the three cases listed there, namely Pollitt ‑ ‑ ‑

GUMMOW J:   They are all set out in paragraph 7 of Mr Weinberg’s outline, I think.

MR HOLDENSON:   Some of the passages are set out there, that is correct, your Honour.  In Pollitt (1992) 174 CLR 558, if I could first again take your Honours to the judgment of Chief Justice Mason. At page 565 in the middle of the page there is again a reference to the judgments in Walton to which I have taken your Honours and then at page 566 there is a statement to the effect, and I quote in part:

The case for relaxing the hearsay rule should in my view prevail so as to permit, at least, the reception in evidence of statements during the course of a telephone conversation.

Further down the page there is reference to Benz and then at about point 7 on that page:

Indeed, to insist on an application of the hearsay rule when the witness who participated in the conversation is dead is to deprive the court of evidence which may be relevant, reliable and valuable.

And on the next page, page 567, about seven lines from the head of the page, again in the context of telephone conversations his Honour says:

So long as it is made immediately after the telephone conversation concludes it is likely to have a high degree of spontaneity, to be free from the possibility of concoction and thus to have a high degree of reliability.

There are similar passages to be found in the judgment of Justice Deane at pages 594 through to 597 where, in my submission, the effect of those passages is that the hearsay rule ought not be applied inflexibly in circumstances where it is open to a tribunal of fact to find that the evidence is reliable.  In order to so determine, if it is apparent that it is free from concoction or fabrication, if it is spontaneous, as against that - one of the considerations against that is as to whether or not prejudice is caused by reason of there being an inability to cross‑examine the maker of the statement.

The passages in each of those three cases, Walton, Benz and Pollitt, have been the subject of some consideration by the New South Wales Court of Appeal in Astill.  That is set out within that same paragraph.  Although obiter, at page 158 of that decision, the President of the New South Wales Court of Appeal, President Kirby, construed those passages ‑ ‑ ‑

BRENNAN CJ:   Would you just read out into the record the reference to Astill’s Case.

MR HOLDENSON:   Astill is reported at (1992) 63 A Crim R 148. At page 158 in the judgment of President Kirby, at about point 2 on the page there is a reference to Walton.  He says:

Reform, including judicial reform, of the hearsay rule appears to be both necessary and inevitable.  However, any development of the law concerning the admission of hearsay evidence, especially in criminal trials, must take into account the high desirability of certainty and simplicity in the governing rules.  Furthermore it must not encroach upon the fundamental right of an accused person normally, “to examine, or have examined, the witnesses against him”.

There is much to be said for the view that a trial judge should, in certain circumstances, have a general residual discretion to admit otherwise inadmissible hearsay evidence.

The third member of that court, Mr Justice Smart, at page 165 at about point 3 on the page at the end of the paragraph there set out, stated:

The court should not take a technical approach in relation to material which is capable of having an exculpatory operation in favour of an accused.

His Honour made that statement, having several pages earlier within his judgment referred at length to Walton.  It is submitted that that is the basis upon which there were those extensions, if I can call them that, to the hearsay rule in both Walton and Pollitt in so far as telephone conversations are concerned.

In those circumstances, relying upon those passages and the approach of the New South Wales Court of Criminal Appeal, as is set out in paragraph 16.3, it is submitted that in any event the hearsay rule ought not be applied inflexibly to the prejudice of an accused person and that the circumstances of this case constitute an appropriate vehicle for the adoption and application of such an approach.

As is set out in paragraph 16.5 on page 6 of the outline, it is submitted that the so‑called traditional view, or the very strict view as to the admissibility of such evidence, ought not be permitted to prevail, and those cases which clearly indicate that strict view, all of which constitute a hurdle to the appellant in this case, are set out in that paragraph. 

As is set out in paragraph 16.7 at the very foot of page 6 of the outline, the alternative is that the confessions fell within an exception to the rule against hearsay evidence, namely declarations against penal interest.  In that regard, if I could take the Court to the Canadian cases, and first, the case of Demeter v The Queen (1977) 75 DLR (3d) 251. Now, the facts of that case ‑ ‑ ‑

GUMMOW J:   Mr Holdenson, is there any Canadian standard work on evidence that summarises these cases in a scholarly way?

MR HOLDENSON:   Yes, there is.

GUMMOW J:   Why do we not just go to them one by one?

MR HOLDENSON:   As I recall, it is ‑ I do not have it with me ‑ it is Sapinka ‑ ‑ ‑

GUMMOW J:   Well, he is now a member of the Supreme Court of Canada so it might be worth looking at.

MR HOLDENSON:   And there is also a text published by the Canadian Law Book Company by McWilliams, as I recall.  Now, Demeter ‑ the facts are conveniently set out at page 253, within the judgment of Justice Martland, in the middle of the page, and at the outset it is submitted that the facts of that case are nowhere near as compelling as those in the instant case.

The case for the Crown was that the appellant had procured some unknown person to kill the appellant’s wife.  The appellant sought to introduce, through the witness Dinardo that one; Eper, who was apparently unconnected with the appellant, had confessed to the murder of the appellant’s wife.  Eper was an escaped convict, who had been serving a sentence for life at the time of his escape, and who had died prior to the trial.

McHUGH J:   This is one of the problems about relaxing this rule.  The courts will be full of people giving evidence of deceased people, or prisoners serving life sentences making confessions for these particular crimes.

MR HOLDENSON:   That has certainly been in the mind of the courts throughout all these cases.  However, the courts in Canada, and for that matter in the United States, have enunciated a set of principles or criteria which are to be satisfied prior to the admission of the evidence.  In other words, conditions precedent to the admission of the evidence.  And if those criteria are satisfied, then the evidence is to be admitted.  The weight to be attached to it is, of course, a question of fact for the tribunal of fact.  Now, in due course I will be, without spending any time in this Court on it, indicating by way of submission and reference to portions of the appeal books, as to why it is that these confessions of Calder are, on their face, reliable and, in fact, confirmed by other evidence in the case, in the trial, evidence which could not be said to have been in any way within the camp of the appellant, Bannon.

Calder had expressed an intention or a desire, a week before these murders, to kill the male deceased, Armstrong.  She had what is more a motive to kill Armstrong.  She had a psychiatric history or condition such that propensity evidence was led in the trial to the effect that Calder had a propensity to commit murder.

BRENNAN CJ:   Could we come back to the principle that you wish to develop, Mr Holdenson?

MR HOLDENSON:   If your Honour pleases.  Having recited the facts at page 253 in Demeter, there is then a discussion from the judgment of the Court of Appeal of The Sussex Peerage case, van Beelen, Donnelly and so on.  Then, as is indicated at the foot of page 254:

The Court of Appeal enunciated a number of principles which would have to be applied in determining whether a declaration is against pecuniary or proprietary interest.

That is, on the assumption that it was appropriate to extend the exception from proprietary or pecuniary interest to penal interest.  And those criteria are set out on page 255, the first of them being that:

The declaration would have to be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result.

Now, if I might just interrupt my reading at this point, in so far as the instant case is concerned, on one of the occasions there was an indication by Calder of an apprehension of penal consequences.  She said “prison is not a worry for me”.  Further down, the second criterion, number 2:

The vulnerability to penal consequences would have to be not remote.

Thirdly:

“...the declaration sought to be given in evidence must be considered in its totality.  If upon the whole tenor the weight is in favour of the declarant, it is not against his interest”.

Fourthly:

In a doubtful case a Court might properly consider whether or not there are other circumstances connecting the declarant with the crime and whether or not there is any connection between the declarant and the accused.

And finally, fifthly:

The declarant would have to be unavailable by reasons of death, insanity, grave illness -

and so on.  Now, the Court of Appeal in that case was aware of the very things to which your Honour Justice McHugh has directed my attention, and as a result indicated those matters to be satisfied prior to the admission of the evidence.  Now, in the next paragraph on page 255, the Supreme Court of Canada indicated that those five criterion or principles were:

a valuable guide for consideration in the event that this Court should determine that a declaration against penal interest is not to be held inadmissible -

Now, on the facts of the case it was clearly decided that there was no:

evidence to show that when Eper made his statement to Dinardo that he apprehended or had any cause for apprehension that it was contrary to his interest, either penal or pecuniary.

And that discussion is set out at page 256. 

Now, three weeks later the Supreme Court of Canada had the same question before it and that was in the case of Reg v O’Brien (1977) 76 DLR (3d) 513. The facts are set out at the foot of page 514 in the opening passage of the judgment of the court delivered by Justice Dickson:

Martin Edward O’Brien and Paul Jensen were jointly charged with possession of a narcotic for the purpose of trafficking.  O’Brien was arrested and convicted; Jensen fled the country.  Following O’Brien’s conviction, Jensen returned to Canada.  He told O’Brien’s counsel, Mr Simons, that he, Jensen, alone had committed the act.  He agreed to testify to that effect.  Before the hearing, Jensen died.

The case then went to the appropriate Court of Appeal dealing with the question or issue of whether or not that evidence constituted fresh evidence.  There is on the subsequent pages, pages 516 and 517, discussion of Donnelly’s Case, Sussex Peerage and so on, and if I could take your Honours now to page 518 where the court put to one side those matters which it considered to constitute impediments to this expansion or extension of the hearsay exception:

In Donnelly, Mr Justice Pitney said that there was, at that time, a “great and practically unanimous” weight of authority in the state Courts against admitting evidence of confessions of third parties made out of Court and tending to exonerate the accused.  That unanimity has disappeared -

and a number of cases are cited.  Further down there is a reference to Wigmore:

Dean Wigmore has made a devastating onslaught on a rule which would admit declarations against pecuniary interest but deny admission to declarations against penal interest.  His attack is founded upon logic and upon the historical argument that The Sussex Peerage case was a departure from the earlier rule that admissions against interest generally were accepted in a proper case; The Sussex Peerage case was a “backward step,” in the words of Traynor, J  Dean Wigmore is not alone in his reproach -

and your Honours will then see reference to the Australian text of Baker published in 1950.  I have provided to the Court copies of the relevant portion of the chapter from that text earlier today and your Honours will there see set out at page 69 - and I do not propose to take your Honours to that now - a discussion of the authorities which preceded the Sussex Peerage Case, which it is set out in the discussion clearly to the effect that the Sussex Peerage Case constituted a narrowing of what had considered to be the extent or ambit of the exception and there is reference to a number of cases on page 69 to that effect.

In any event, Baker proceeds to discuss and criticise at length the confining of that exception to declarations against pecuniary or proprietary interest and argues that the exception should at least extend to declarations against penal interest and in respect of tort.  If I could take your Honours to the next paragraph because significant or substantial reliance is placed upon that by the appellant in this case.  The final paragraph on page 518 in the judgment of the Court in O’Brien:

The effect of the rule in The Sussex Peerage case, as it has been generally understood, is to render admissible a statement by a deceased that he had received payment of a debt from another or that he held a parcel of land as tenant and not as owner, but to render inadmissible a confession by a deceased that he and not someone else was the real perpetrator of the crime.  The distinction is arbitrary and tenuous.  There is little or no reason why declarations against penal interest and those against pecuniary or proprietary interest should not stand on the same footing.  A person is as likely to speak the truth in a matter affecting his liberty as in a matter affecting his pocketbook.  For these reasons and the ever-present possibility that a rule of absolute prohibition could lead to grave injustice I would hold that, in a proper case, a declaration against penal interest is admissible according to the law of Canada;  the rule is to absolute exclusion of declarations against penal interest, established in The Sussex Peerage case, should not be followed.

The judgment then goes on to set out, once again, those criteria which had been enunciated by the Court of Appeal in Demeter and indicated that they constituted a valuable guide.  Nevertheless, at the end of the day, it is made clear at page 520, the statement in that case by the declarant was not against penal consequences by reason of the charges against him having, at the time he made the statement, been permanently stayed.  In any event, it was further held that there was no realisation by the declarant that the statement might well be, at some point in time, used against him.

Now, the next case cited on the outline is the case of Reg v Pelletier, (1978) 38 CCC (2nd) 515, that being a decision of the Court of Appeal of Ontario which is authority for the proposition that the declarant, in so far as a declaration against penal interest or a declaration against proprietary or pecuniary interest is concerned, need not be dead at the time that evidence of the statement is sought to be led in evidence but simply practically unavailable.

If I might just interrupt my discussion of Pelletier just for one moment, the Full Court of the Supreme Court in Van Beelen’s Case 9 SASR proceeded on the same basis.  Pelletier’s Case also held that this exception, as enunciated by the Supreme Court in O’Brien, extended to mixed statements but subsequently, as is set out on the outline in the case of Lucier v The Queen (1982) 132 DLR (3d) 244, the exception was held not to extend to inculpatory statements sought to be adduced by the Crown and the reason is clearly expressed in the headnote. If I might take your Honours to the headnote at page 244 at point 5 on the page, in the middle of the page:

While it is now recognized that in a proper case statements tendered on behalf of the accused and made by an unavailable person may be admitted at trial if they can be shown to have been made against the penal interest of a person making them, such statements have never been admitted where they have an inculpatory effect on the accused.  To the contrary, wherever such statements have been admitted they have had an exculpatory effect.  The distinction is a real one since the statement implicating the accused in the crime with which he is charged emanating from someone who is no longer available to give evidence deprives the accused of the invaluable weapon of cross‑examination which has always been one of the mainstays of fairness in Courts.

McHUGH J:   Why does that not apply to the Crown?  Even the Crown is entitled to a fair trial.

MR HOLDENSON:   In this case the Crown, in the case of Bannon, led that evidence from both Goodman and Duiker.

McHUGH J:   Yes, but we are not talking about this case.  You keep coming back to this case but you want to deal with this matter as a matter of principle.

MR HOLDENSON:   In so far as the Crown is concerned, the Crown can be protected, for want of a better expression, by a direction to the jury to the effect that, “Of course that evidence has not been tested, it’s a matter for you, but if it had been tested then certain things could happen”, in the very same way that there is already a statutory exception in every State as to the Crown being permitted to lead evidence in a trial of evidentiary material adduced in a committal hearing and if the witness or the deponent has died, left the country, not available, whatever; certain statutory things are set out, then the evidence can be led and the jury is given a direction concerning it.

In those circumstances the evidence is generally led by the Crown, of course, to the disadvantage on occasions to an accused person, but nevertheless the accused is protected with an appropriate warning.

McHUGH J:   Yes, Mr Farquhar was convicted on such evidence.  The magistrate who gave evidence against him at the committal proceedings had died by the time of the trial.

MR HOLDENSON:   There is now a line of cases which are authority for the proposition that, nevertheless, a trial judge has a discretion as to whether or not to admit that evidence and it is, putting Mr Farquhar to one side, certainly of importance in circumstances where the evidence is that of identification. If the identification witness in an armed robbery or whatever dies, then of course in those circumstances there is the traditional warning given to the jury as to the care they should take in considering or acting upon evidence of visual identification.

In any event there can be protections afforded to the Crown in the same way that an accused is protected, at least to some extent, when the Crown seeks to lead this evidence where the real witness has died.  The Crown is also, in my submission, protected in circumstances where the evidence is - I will use the word loosely ‑ corroborated, confirmed, or there is other circumstantial evidence which connects, or which indicates the truth of that which is said in this third party declaration.  In other words, there is evidentiary material which gives it ‑ or indicates ‑ reliability, trustworthiness and so on.  Of course, in all those cases, where you have someone ‑ in one of the American cases, for example, a man was about to be electrocuted and then confessed to a killing in respect of which someone else, many years before, had been convicted.  Now, of course, such a third party declaration is worthless.  The person is about to die when they make the declaration and the courts have rightly excluded such evidence when it is sought to be led by an accused person or by a person seeking to lead fresh evidence on appeal.

If I might continue just with the outline there at page 7.  I have taken your Honours through the Canadian cases.  There is also Donnelly’s Case, 228 US 243 where there is the strong dissenting judgment by Mr Justice Holmes. I will not take the Court to it Donnelly’s Case has subsequently been put well and truly to one side by the Supreme Court decision of Chambers v Mississipp i410 US 284, set out on the outline there. I will not take the Court to it.

If I could, nevertheless, subject to your Honours, take your Honours to the case of People v Edwards, as illustrating the approach adopted in so many of the American cases.  As has been indicated in my friend’s outline, the American cases do indicate that such evidence is admissible in certain circumstances, and there are numerous authorities to that effect.  The case of People v Edwards (1976) 242 NW (2d) 739; the facts of that case are set out at page 739 at about point 4 on the page in the right‑hand column:

At trial, one of Edwards’ witnesses sought to testify that Chester Blake, then deceased, had told him that he (Blake) killed Stevens.  The trial court sustained the prosecutor’s objection and asked the jury to disregard the testimony....

We hold that the proffered hearsay evidence was admissible as a declaration against penal interest and reverse and remand for a new trial.

Now the facts are again set out in a little more detail at page 740 in the right-hand column.  Now, if I could take your Honours to page 741, head of the page, left-hand column:

One exception is for declarations against the pecuniary or proprietary interest of the declarant.  Such statements are admissible as proof of the matter asserted if the declarant is unavailable for trial because they are considered inherently reliable.  Wigmore states “the basis of the exception is the principle of experience that a statement asserting a fact distinctly against one’s interest is unlikely to be deliberately false or heedlessly incorrect.”

While courts uniformly recognize the exception for declarations against pecuniary or proprietary interest, they have generally refused to admit declarations against penal interest.

There is then reference to the Sussex Peerage Case, there is a further reference to the views of Wigmore and McCormick, and in the right-hand column at page 741 it is said from a passage from Wigmore:

It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession, made on the very gallows, by the true culprit now beyond the reach of justice.

I will not read the remainder of that.  On page 742 there is a reference to Donnelly; there is a reference there, in fact, the setting out of the judgment of Justice Holmes, and then on the succeeding pages there is a brief discussion of a series of cases in the United States where this evidence has been admitted, and I do not propose to take your Honours through all of them; there is just so many.

At page 744 toward the end of the judgment:

The cases generally offer no reasoned justification for excluding declarations against penal interest beyond the simple statement that they are hearsay.  It has been suggested that the underlying rationale is fear that the admission of such evidence would encourage fabrication.

That is further considered, and then it is decided by the court that the extension to declarations against pecuniary proprietary interest ought be made to include declarations against penal interest.

And then, at the foot of page 745, in the right-hand column, it was held:

We are of the opinion that the circumstances surrounding the making or reporting of the third-party statement, whether “assuring reliability,” “indicating trustworthiness,” or “rendering totally incredible,” go to the weight to be given the testimony, not its admissibility.  For a judge to exclude evidence because he does not believe it has been described as “altogether atypical, extraordinary...”

They proceed to hold that the evidence in that case ought to have been admitted.  In paragraph 16.8 on the outline, it is submitted that the authorities which limit the exception to declarations against pecuniary or proprietary interest create a distinction which is both arbitrary and tenuous.  I have taken your Honours through those cases and I have indicated to your Honours in passing that in so far as Van Beelen 9 SASR 163 is concerned, at pages 204 to 205 the Full Court assumed that unavailability caused by reasons other than death was sufficient.

In so far as the judgment of the court below is concerned, at volume 3 of the appeal book at page 546, having indicated that van Beelen’s Case in the view of the court below reflected the law in the State of Victoria, proceeded to state nevertheless:

However, we should point out that even if this Court considered itself free (which it does not) to disregard the long settled law governing the matter and to follow the approach of the Canadian courts, the present application could not succeed for at least two reasons.  First, there is nothing in the statements attributed to Calder which would enable the view to be formed that she made declarations against penal interest according to the tests earlier set out, as opposed to the utterance of general self‑incriminating statements.

It is submitted that that reasoning, or finding, is as a matter of fact incorrect in so far as one of the so‑called confessions is concerned because it did indicate an apprehension of penal consequences, and for that matter open to the jury to infer an apprehension of vulnerability to penal consequences, she having said “I could have killed two people, but it does not matter, it is not a worry.  Prison means nothing to me”.  The court then proceeds to set out a second reason for disregarding that which was enunciated by the Canadian courts, and I quote from the middle of page 546 of the third volume:

Second, the statements, were made in a case in which the Crown allegations involved the contention that Bannon was possibly implicated as an aider and abettor of Calder.  If this view were being considered by the jury the statements could well have been regarded as inculpatory of Bannon and inadmissible in accordance with the ordinary principles relating to out of court admissions by a co‑accused.

It is submitted that in so far as that view is concerned, the jury could just as well have been given a very short direction to the effect that if the jury construed those statements, or those confessions, all four expressed in the first person singular, as in some way being evidence against the appellant then the jury could be directed, and ought to have been directed, then such material is to be disregarded in your ‑ that is, you the jury ‑ consideration of the case against Bannon.

So, in other words, there are these four confessions.  “If you are of the view that they do not in any way attribute misconduct to Bannon then you may take them into account - a question of weight for you, the jury - you may take them into account in your consideration of the Crown case against Bannon”.  The learned trial judge might even express the comment, “Keeping in mind that they are entirely consistent with the unsworn evidence of the accused, Bannon.”

DEANE J:   But how could that be?  I mean, you are dealing with admissibility of evidence here.

MR HOLDENSON:   Yes.

DEANE J:   If these were admitted at the behest of the accused, the accused cannot then say to the judge, “And I want you to tell the jury that they’re only in so far as they help me”.

MR HOLDENSON:   I am sorry, your Honour, that is entirely correct.  I think what I was doing was just getting ready for one of the arguments which will be put against me as to the problems it will lead to in so far as directions are concerned to juries but, in my submission, there is no such problem.  But your Honour is entirely correct and I adopt what ‑ ‑ ‑

BRENNAN CJ:   On the question of admissibility, what is the test then?  Does the trial judge construe the statement in order to determine whether it could be construed by the jury as being inculpatory?

MR HOLDENSON:   In my submission, he ought construe the statement in this way:  is the statement capable of being interpreted by a tribunal of fact in the way contended for by Bannon’s counsel?  In the same way as happens in the law of defamation, the impugned statement, how could this be read by a tribunal of fact?  That is the test, in my submission, to be adopted by a trial judge.

BRENNAN CJ:   Is a statement admissible if a jury could regard it as being solely exculpatory?

MR HOLDENSON:   I am sorry, your Honour.  I am not sure that I understand your Honour’s question.

BRENNAN CJ:   If the Crown has evidence available which on one view of it could be regarded as wholly exculpatory of one of the accused, does the trial judge then admit it, even though on another view it could be inculpatory of that accused?

MR HOLDENSON:   Depending upon the wishes of the parties, the answer is yes.

BRENNAN CJ:   So it depends on whether or not counsel for the accused seek its admission?

MR HOLDENSON:   Yes.  There might be circumstances, of course, where the defence to be run is such that it will cloud the issue, for example.  I cannot think of such a factual situation while I am on my feet, but that could well be the case but, of course, evidence which is entirely exculpatory of an accused, in those circumstances the Crown is under an obligation to lead it in any event as a matter of fairness.  It is certainly under an obligation to disclose the existence of the evidence to the defence and is under an obligation, of course, to lead that evidence unless it is considered that the evidence is unreliable, untrustworthy, for example, fabricated, forged.

DAWSON J:   I am not sure I am following what you are saying.  Even if it is hearsay?

MR HOLDENSON:   I am responding to Justice Brennan’s question.

DAWSON J:   Yes.  You seem to be saying that the Crown is bound to lead the evidence of the exculpatory statement.

MR HOLDENSON:   In my submission, the answer is, yes, the Crown are under an obligation to lead evidence of the exculpatory statement.

DAWSON J:   Under the rule for which you are contending?

MR HOLDENSON:   Yes, unless the Crown is of the view that the material is fabricated, forged or whatever, and then it is left to the accused to lead the evidence.

DAWSON J:   Yes.  Well, the question was, what is the situation if the statement may also be regarded as inculpatory?  Your answer as I understood it, well, then it depends upon whether the accused submits that it ought to be.

MR HOLDENSON:   That is correct and that is why one comes back to the case of Zullo, the first decision to which I referred the Court, the decision of the Queensland Court of Appeal.  In that case the Crown did lead the evidence, albeit subsequently retracted, and the Court of Appeal stated that such evidence ought be admitted at the instance of the defence and that was the basis upon which that statement was made by the Court of Appeal, at the instance of the defence.

DAWSON J:   There would be no problem in the present case because it was just a question of whether your client, the co‑accused, was entitled to rely on the statement or not.  It was already in evidence.

MR HOLDENSON:   That is correct and he clearly sought to rely on it through his counsel, as is set out in the outline.  Now, as is set out in paragraph 16.9 at the head of page 8, it is submitted that the court below erred in determining that the tests as enunciated by the Canadian authorities,

and for that matter the American authorities, had not been satisfied and I have taken your Honours already to that passage.  Then comes the next paragraph, paragraph 16.10 and I have already said something concerning the cases there cited.  The further alternative, which is, of course, much more broad, it is submitted that the confessions should have been admitted into evidence in the trial of the appellant on the basis that this evidence was necessary and reliable, such basis being a new exception to the rule against hearsay recently created by the Canadian courts.

BRENNAN CJ:   This is raising a new point that you are going to get on to?

MR HOLDENSON:   That is correct.

BRENNAN CJ:   How much longer will your argument take, Mr Holdenson?

MR HOLDENSON:   One hour.

BRENNAN CJ:   And you, Mr Weinberg?

MR WEINBERG:   One hour plus, but not plus very much.

BRENNAN CJ:   The Court will adjourn now until 10 o’clock tomorrow morning.

AT 4.24 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 1 JUNE 1995