Bannon v The Queen

[1994] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Melbourne     No M128 of 1993

B e t w e e n -

ANTHONY CHARLES RAYMOND BANNON

Applicant

and

THE QUEEN

Respondent

Second Respondent
  Application for special leave to
  appeal

MASON CJ
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 6 DECEMBER 1994, AT 11.54 AM

Copyright in the High Court of Australia

MR O.P. HOLDENSON:   May it please the Court, I appear on behalf of the applicant.  (instructed by A.I. Crockett, Legal Aid Commission (Victoria))

MR P.A. COGHLAN:   If it please the Court, I appear for the respondent.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

MASON CJ:   Mr Holdenson.

MR HOLDENSON:   The subject of this application is the admissibility of a third party confession.  Counsel for the applicant at the trial, having sought that the confession or confessions - - -

MASON CJ:   We are familiar with the facts, so you should come straight to the critical point of the application.

MR HOLDENSON:   The critical point is this, Your Honour, as - in this regard, I will have to, to some extent, just for a moment cover the facts.  The confessions were relied upon by the Crown in their case again Calder.  However, the learned trial judge refused to allow the jury to take those confessions into account in consideration of the Crown case against the applicant.

The co-accused, Calder, stood mute at the trial and could not be called and, as a consequence, the court below held that the admission of those confessions, as they were in the applicant’s trial, was precluded by reason of the hearsay rule.

Now, at the outset of the application, it must be conceded that there is clear authority to that effect: the South Australian Full Court in Van Beelen and in Szach, and the subsequent decision of the House of Lords in Blastland.  However, notwithstanding that - and if I could take the Court to paragraph 6.1 of the outline at page 5 - evidence of that nature, even if technically inadmissible as hearsay evidence ought be admitted, it is submitted, at the instance of the defence. 

Your Honours, will then see reference to the recently reported decision of the Queensland Court of Appeal in Zullo.  Now, in that decision, which was reported at a time subsequent to the judgment being delivered by the court below, the Queensland Court of Appeal, having referred to Blastland and having  referred to Van Beelen, expressed the view that a third party confession ought be admitted into evidence at the instance of the defence.

It is submitted that the decision of the Queensland the Court of Appeal is correct and, of course, it goes without saying that the effect of that decision is in direct conflict with the judgment below. The relevant passage, of course, appears in that judgment reported in (1993) 2 Qd R 572, at page 574 where, at line 20, there is reference to Blastland, Van Beelen, the United States Supreme Court decision of Donnelly and then there is reference to the dissenting judgment in that case.

A few lines further down, namely at line 37, the Court of Appeal held that the confession made by Beard in that case was, in the opinion of the court, material to be considered by the jury for what they considered it to be:

worth, and may very well have inclined the jury towards a “not guilty” verdict - - -

DAWSON J:   What is the origin of the notion that a confession is not an exception to the hearsay rule where other admissions against interest are?

MR HOLDENSON:   If I understand Your Honour’s question correctly, it is the reason why there is an exception to the hearsay rule in respect of confessions, the reason being, as I understand the cases, is that it is unlikely that a person says something against an interest if it not be true.

DAWSON J:   But Van Beelen denied that there was an exception to the hearsay rule.

MR HOLDENSON:   That is correct.  Van Beelen is squarely against this application and was relied upon by the court below.

DAWSON J:   Is there no clear authority other than Van Beelen?

MR HOLDENSON:   Van Beelen is clear. 

DAWSON J:   Other than Van Beelen.

MR HOLDENSON:   Szach, a subsequent decision of the South Australian Full Court in 1980 - it follows Van Beelen - and Blastland, the 1985 decision of the House of Lords, is precisely to the same effect.

TOOHEY J:   You do not have any decision of this Court directly in your path, do you?

MR HOLDENSON:   No, I do not have any decision of this Court so far as my researches have disclosed blocking me.

MASON CJ:   You have also got an English the Court of Appeal decision in your favour.

MR HOLDENSON:   That is correct.  If I could take the Court to the fairly recent decision of the English the Court of Appeal in Beckford and Daley.  Now, in that case, one, Correia, a co-accused of the two accused, Beckford and Daley, had confessed to the police that he had killed the deceased, Johnson.  In the joint trial of each of the three accused, the learned trial judge ruled that confession inadmissible.  Correia then stood mute at his trial and, of course, could not be called to give evidence by either Daley or Beckford. 

The learned trial judge in that case refused to allow Daley’s counsel to adduce evidence in support through the cross-examination of police officers and the English the Court of Appeal at page 9, in that unreported decision which I exhibited to the list of authorities, held that the learned trial judge was correct in deciding that evidence of that confession was inadmissible as hearsay in the trial of Beckford and Daley.

However, if I could take the Court to the very foot of page 11 at paragraph G, that is, the second‑last page, there is reference to Mr Mylne’s final ground of appeal, that being that the verdict of the jury was unsafe and unsatisfactory.  The court said:

We have examined, as Mr Cocks 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. 

There is reference then to the medical evidence.

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.

The court proceeded to quash the conviction of Daley for murder and enter in respect thereof a verdict of acquittal.

Now, the approach of the Queensland Court of Appeal and the English the Court of Appeal, it is submitted, is consistent with recent statements of this Court concerning the hearsay rule as is set out in paragraph 6.2. 

If I could very briefly take Your Honours to a passage in Pollitt, (1992) 174 CLR 558, where Your Honour the Chief Justice Mason at page 565 referred to statements of principle made in the case of Walton.  At page 565, in the middle of the page:

However, there are statements in Walton which support a less than rigid application of the hearsay rule.  In that case, I said:

“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.”

There is then reference further down the page to the ‑ ‑ ‑

DAWSON J:   But here you have an acknowledged exception to the hearsay rule and the question is to the extent of it, it is not?

MR HOLDENSON:   “And the question is”, I am sorry?

DAWSON J:   Is to the extent of the exception.

MR HOLDENSON:   That is correct, Your Honour.

DAWSON J:   Now, the exception is that admissions against interest are not kept out by the hearsay rule because they are an exception to it.

MR HOLDENSON:   That is correct.

DAWSON J:   Why is a confession, which is an admission against penal interest, not within the exception or why is it said not to be within it?

MR HOLDENSON:   Because in this case it was a statement made by the co-accused, that is another person than the accused whose case was being considered by the jury.

DAWSON J:   Is the principle that the admissions which are admissible as an exception can only be admitted as against a person making the admission?

MR HOLDENSON:   That is what was held by the trial judge in this case.  That was what was held by the court below and, as I understand - - -

TOOHEY J:   The court used the expression that they were not against penal interest.

MR HOLDENSON:   That was in consideration, as I understand it, of the next limb of the argument in the court below, namely - - -

TOOHEY J:   - - - which was why, in any event, the evidence should not be admitted.

MR HOLDENSON:   That is correct, the declaration against penal interest exception in circumstances where there is an exception declaration against pecuniary or proprietary interest and in that regard - - -

DAWSON J:   And is that the point, that penal interest does not qualify to make it an exception but proprietary or - what was the other one?

MR HOLDENSON:   Pecuniary.

DAWSON J:   Pecuniary interest does?

MR HOLDENSON:   If that be the case, then it is necessary to have regard to what was, in effect, a finding of fact in this case by the court below and in this case the court below held that the statements of Calder were not statements against penal interest.  But, with respect, that cannot be right because one of the - - -

DAWSON J:   We are getting on to another point but what you are saying is that penal interest should be sufficient to enable an admission against penal interest within the exception to the hearsay rule?

MR HOLDENSON:   That is correct.

TOOHEY J   Indeed, the Court of Criminal Appeal said virtually that themselves so they were disposed to admit the evidence had it not been for the two barriers that they saw.

MR HOLDENSON:   Yes.  It is submitted that one of the barriers was - - -

TOOHEY J   But that is taking you into the second limb of the argument.

MR HOLDENSON:   That is correct.  Now, one of the barriers is clearly wrong because there was an acknowledgment by Calder, at the time that she made one of the confessions, of a consequence of that which she had done.  At the head of page 130 of the application book there is the following passage from the transcript:

“Subsequently during the course of that conversation did she say to you again that she could have killed two people but it didn’t matter, it wasn’t a worry, prison meant nothing? - That’s right.

So, there was a reference to the penal consequences of her conduct by the confessor herself:  prison was not a worry to her.  In other words, there was a reference to the consequence.

Now, the Canadian authorities, as is set out in the judgment of the court below, are clearly to the effect that there must be some consideration or some acknowledgment at the time or apprehension of a vulnerability to penal consequences.  As a matter of fact, it is submitted that the fourth of the so-called confessions clearly satisfy that requirement.

Now, the United States cases, as distinct from the Canadian line of cases to which reference was made in the judgment of the court below, are not quite as strict.  In that regard, if I could take Your Honours very briefly to the evidence of the decision in the Supreme Court of Michigan in Edwards’ case, (1976) 242 NW 2d 739, where the evidence in that case was as confined as this:

John Longuemire sought to testify that Chester Blake -

who at the time at the trial was deceased -

had told him that he (Blake) killed Stevens.

As simple as that.  That evidence is set out on page 740, on the right-hand side of the page, and there is a reference to footnote 8, and the series of questions and answers are set out in footnote 8.

So, there are decisions in the United States, including that of Donnelly, which is quoted on the very next page of the decision of Edwards, which put to one side that apprehension of vulnerability.  There is, nevertheless - - -

MASON CJ:   Mr Holdenson, at this stage we have heard sufficient from you.  We will call on Mr Coghlan.

MR HOLDENSON:   If Your Honour pleases.

MR COGHLAN:   If the Court pleases.  The difficulty that arises from the perspective of the respondent in cases such as this, and in the present case in particular, is the way that the matter is to be viewed in the context of a joint trial.  What was happening in the present case was a joint trial being conducted with the whole of the case against Calder being led and the whole of the case against Bannon being led and it was in that context that the so-called confessional material sought to be relied upon came out. 

There were two aspects that needed to be looked at with respect to that evidence.  Whether or not it was confessional against Calder was clear enough:  “I killed a couple of people”, or words to that effect, said on a number of occasions, but in the context of the Crown case that was being put, as acting in concert or aiding and abetting as between the two accused.

I think at least in part the answer to the question asked by Justice Dawson as to why there had been no exception was because, in an ordinary case, one had the option of calling the evidence.  If there was an alternative murderer, the alternative murderer should be called.  It cannot happen in a joint trial for a number of reasons.  So that the rule that became the exception to the hearsay rule against, first of all, pecuniary interest and later penal interest grew up, first of all, in the context of a witness who was dead.  So, it was in that context that the exception first arose.  It has been later extended in the American and Canadian cases but, for a long time, subsisted with in Canada on the basis of the witness being dead and later extended to the witness being not available.

DAWSON J:   But it is simply not consistent with principle that there should be this limitation, is it?  It has been described, I see, as an archaic rule of evidence characterized by experts as an historical accident without reason to support it.

MR COGHLAN:   That is so, Your Honour, and there are difficulties with the rule.

DAWSON J:   Well, could not this Court have a look at it in those circumstances?

MR COGHLAN:   On the one hand, yes, Your Honour, but whether this is the appropriate vehicle was a question strongly in the mind of the respondent in terms of the way this particular trial was conducted.  It was conceded by the respondent in submission that at least two of the questions raised are questions of general importance.  The question of whether this is the vehicle is the only matter that the respondent would otherwise seek to urge.  Apart from those matters, I would seek not to take the matter further unless the Court sought to hear specifically on the circumstances of the particular case.

MASON CJ:   Yes, thank you, Mr Coghlan.  Mr Holdenson, do you want to say anything in response to what Mr Coghlan said?

MR HOLDENSON:   There is an even further line of cases, those cases being referred to in paragraph 6.8 of the outline which just put to one side all conventional notions of the rule precluding the admission of hearsay evidence and as long as evidence satisfies two conditions, namely, necessary and reliable, adopting the dissenting speech of Lord Pearce in the old House of Lords decision of Myers, evidence goes in whether it be inculpatory or exculpatory.  That is perhaps all that need be said.  If Your Honours please.

MASON CJ:   The Court will give its decision in this matter after it has heard the next case, Calder.

AT 12.13 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.35 PM:

MASON CJ:   In Bannon v The Queen, there will be a grant of special leave to appeal.

AT 12.35 PM THE MATTER WAS ADJOURNED SINE DIE