Button v The Queen - [2001] WASCA 7

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BUTTON -v- THE QUEEN [2001] WASCA 7

CORAM: MALCOLM CJ

HEARD: 6 DECEMBER 2000

DELIVERED : 1 FEBRUARY 2001

FILE NO/S: CCA 122 of 2000

BETWEEN: JOHN BUTTON
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Appeal and new trial - Appeal by way of reference from the Attorney-General - Admissibility of affidavit evidence in support of the appeal - Objections on grounds of relevance, inadmissible hearsay and opinion - Preliminary consideration of objection to evidence of confessions by deceased third party to commission of offence of which appellant convicted

Legislation:

Evidence Act 1906 (WA) s 79C

Result:

Certain evidence ruled to be admissible and other evidence ruled to be inadmissible on various grounds

Representation:

Counsel:

Appellant: Mr J A Davies
Respondent: Mr S E Stone

Solicitors:

Appellant: Davies & Co
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bannon v The Queen (1995) 185 CLR 1
Caratti v The Queen [2000] WASCA 279
Chambers v Mississippi (1973) 410 US 284
Demeter v The Queen [1978] 1 SCR 538
Donnelly v United States (1913) 228 US 243
In re van Beelen (1974) 9 SASR 163
Pollitt v The Queen (1992) 174 CLR 558
R v Benz (1989) 168 CLR 110
R v Finta [1994] 1 SCR 701
R v Khan [1992] 2 SCR 531
R v O'Brien [1978] 1 SCR 591
R v Smith [1992] 2 SCR 915
Sussex Peerage Case (1844) 11 Cl & Fin 85; 9 ER 1034
The Queen v Golightly, unreported; SCt of WA; Library No 970040; 14 February 1997
Walton v The Queen (1989) 166 CLR 283
Ward v H S Pitt & Co; Lloyd v Powell Duffryn Steam Coal Co [1913] 2 KB 130
Zullo v R [1993] 2 Qd R 572

Case(s) also cited:

Barker v The Queen (1983) 153 CLR 338
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Connell v The Queen [No 6] (1994) 12 WAR 133
Lobban v The Queen [1995] 1 WLR 877; 2 All ER 602
Lucier v The Queen [1982] 1 SCR 28; 132 DLR (3d) 244; 65 CCC (2d) 150
Macquarie bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203; 7 ACSR 553; 10 ACLC 785
Newcastle City Council v GIO General Ltd (1997) 72 ALJR 97
People v Craven (1973) 299 NE 2d 1
People v Fletcher (1975) 546 P 2d 980
People v Pietrzyk (1977) 369 NE 2d 1299
People v Edwards (1976) 242 NW 2d 739
R v Agawa and Mallet (1975) 28 CCC (2d) 379
R v Blastland [1986] AC 41
R v Bexkford [1991] Criminal Law Review 833
R v Chahley (1992) 72 CCC (3d) 193
R v Edwards (1994) 91 CCC (3d) 123
R v Greatorex (1994) 74 A Crim R 496
R v Kharsekin (1994) 88 CCC (3d) 193
R v Pelletier (1978) 38 CCC (2d) 515
R v Rogers [1995] 1 Cr App R 374
R v Szach (1980) 23 SASR 504
R v Turner (1975) 61 Cr App R 67
R v Unger (1993) 83 CCC (3d) 228
Vocisano v Vocisano (1974) 130 CLR 267
Wacal Developments Pty ltd v Realty Developments Pty Ltd (1978) 140 CLR 503
Wade v Gilroy (1986) 83 FLR 14
Webb v The Queen (1994) 181 CLR 41

MALCOLM CJ: This is an appeal against conviction by way of a reference from the Hon Attorney General pursuant to s 144 of the Sentencing Act 1995. At a directions hearing in relation to the appeal on 6 December 2000 I heard a motion by the Crown to strike out various parts of numerous affidavits filed in the appeal on which the appellant sought to rely in support of his appeal.
The objections were that the affidavits contained material which was inadmissible on the grounds that it was inadmissible hearsay or inadmissible evidence of opinion or both. There were also objections on the ground of relevance but, in my opinion, the question of relevance is one that should be determined upon the hearing of the appeal and in the context of the consideration of the individual grounds of appeal. I was invited by counsel for the appellant not to rule that any affidavit be ordered to be struck out or declared inadmissible at this stage, but to rule on those parts said to be inadmissible so that formal proof of relevant matters could be undertaken in due course. I am prepared to approach the matter on that basis, so that the affidavits remain on the record, but with those portions ruled inadmissible being notionally deleted.
Affidavit of Estelle Blackburn sworn 18 October 2000
Ms Blackburn is an investigative journalist who has investigated matters relating to crimes of which one Eric Edgar Cooke ("Cooke") was convicted and other crimes which it is alleged he had committed, including the offence or offences committed which resulted in the death of Rosemary Anderson in respect of whose death the appellant was found responsible and convicted of manslaughter. An appeal against his conviction to the Court of Criminal Appeal was dismissed. The present appeal is based upon what is said to be fresh or new evidence which, so it will be contended on the appeal, when taken into account with the earlier evidence, leads to a conclusion that the appellant was wrongly convicted of manslaughter in respect of the death of Ms Anderson or that the conviction should be set aside on the ground that the trial involved a substantial miscarriage of justice.
Ms Blackburn's investigations have also involved an examination of the question of whether one Darryl John Beamish ("Beamish") was wrongly convicted of the wilful murder of Jillian McPherson Brewer on 20 December 1959. In his case also it has been suggested that Cooke may have been responsible and that Beamish may also have been wrongly convicted. How matters concerning Beamish are said to be relevant to the present appeal does not appear.
In pars 1 and 2 of her affidavit, Ms Blackburn says:
"1.I am an investigative journalist. In 1992 I started investigating matters pertaining to the crimes of Eric Edgar Cooke ('Cooke') and as a result of the crimes allegedly committed by John Button ('Button') and Darryl Beamish ('Beamish') concerning the deaths of Rosemary Margaret Anderson ('Anderson') and Jillian MacPherson Brewer ('Brewer').
2.I have discovered a number of matters which, had they been known at the time of the trials of Button and Beamish, may have significantly affected the chances of acquittal of both men."
Paragraph 1 of the affidavit is admitted, but no other facts asserted by Ms Blackburn are admitted. The Crown objects that par 2 is an inadmissible expression of opinion. Counsel for the appellant concedes that, but submits that whether and to what extent the chances of acquittal were affected, is "merely expository" in nature and does not purport to be proof of any particular fact. The objection by the Crown is well founded. Ms Blackburn's opinions or conclusions are inadmissible. Such opinions are not put forward as those of an expert and relate to matters for the Court to determine for itself on the basis of admissible evidence. In par 4 of her affidavit Ms Blackburn deposes to the discovery of "significant matters" which may have affected the outcome of his trial had they been known to the police or his counsel at the time or at any time prior to his appeals to the Court of Criminal Appeal or the High Court. This material is inadmissible for the same reason as the material in par 2 of the affidavit is inadmissible.
The matters referred to include repeated confessions made by Cooke claiming responsibility for the death of Ms Anderson from 10 September 1963, some 10 days after his arrest, to 26 October 1964, immediately prior to his execution. Particulars of a number of alleged confessions are then set out, together with certain other matters.
It was submitted on behalf of the appellant that the material in par 4 merely proves the time when the deponent became aware of the existence of the information in question. The relevance of the time when Ms Blackburn became aware of the existence of the material in the context of the appeal does not appear, but this issue was not explored before me. It was also submitted on behalf of the appellant that the material in par 4 does not purport to establish the truth of the information, but only that it was not available to the appellant's defence. In my opinion, however, the fact that it was not available to the defence is not a matter capable of proof by Ms Blackburn. Coming from her it is inadmissible hearsay. Evidence of the appellant himself and, to the extent that it is available, from his counsel and solicitors should be forthcoming on the issue whether the evidence was known or could have been obtained on reasonably inquiry at the material time. It is noted that Mr B P Kakulas QC, who was the appellant's junior counsel at the time of his trial, is said to be in a position to give evidence about what was and was not known to the defence at the material times concerning the matters referred to in par 4(a).
The admissibility of confessions made by Cooke, now deceased, assuming they are able to be proved, is a matter of fact which raises a separate and significant issue dealt with separately later in these reasons. The confession to the three police officers referred to in par 4(a)(i), assuming it is otherwise admissible, should be proved by obtaining an affidavit from the persons to whom it was made, or calling them as witnesses. The confession(s) made by Cooke to his solicitor, Mr D C Heenan (as he then was), at Fremantle Prison in the period from 19 September 1963 referred to in par 4(a)(ii), if otherwise admissible, should be proved by calling the witness to whom the confession(s) was or were made, or calling him as a witness. The confessions to Mr Blank referred to in par 4(a)(iii), to Mrs Sarah Cooke referred to in par 4(a)(iv) and to the other persons referred to in par 4(a)(v)and (vi) stand on the same footing.
In the case of the Methodist Minister Mr George Jenkins referred to in par 4(a)(vii), his evidence is contained in a statutory declaration made before a Justice of the Peace dated 12 November 1964, in which he says that from the time Cooke became an inmate of Fremantle Prison following his conviction of the murder of one Sturkey he repeatedly stated that he was the person responsible for the death of Ms Anderson, for whose death the appellant had been held responsible and convicted of manslaughter.
It is asserted by Ms Blackburn that Mr Jenkins died on 31 August 1981. The evidence of his death in that form is inadmissible hearsay. It is contended, however, that the affidavit is admissible to prove the confession under s 79C(4) of the Evidence Act 1906 on the authority of Caratti v The Queen [2000] WASCA 279. I will consider this contention assuming that Mr Jenkins' death is properly proved or admitted, and evidence of the confessions by Cooke is otherwise admissible. There was no detailed argument on the point, but there was a general argument put by the Crown that evidence of confessions by Cooke was inadmissible hearsay. That general argument is dealt with below. As will appear, there are substantial questions concerning the admissibility of the various confessions by Cooke on which the appellant seeks to rely which I consider should be considered by the full Court of Criminal Appeal rather than a single Judge.
Caratti was concerned with a prosecution for conspiracy to defraud the Commonwealth of group tax required to be deducted from the wages paid to employees. The Crown sought to tender a statutory declaration by one Navratil, then deceased, a former employee of a company of which Caratti was a director, in which he said that in response to a request for a group certificate, the appellant said to him:
"Nick, you are crazy. How can I give you a group certificate when I never paid one fucking cent in tax?"
Counsel for Caratti objected to the admissibility of this evidence on the ground that the evidence was hearsay and not rendered admissible by s 79C(1)(a) or (b) of the Evidence Act 1906. Section 79C relevantly provides that:
"(1)Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement -
(a)was made by a qualified person; or
(b)directly or indirectly reproduces or is derived from one or other or both of the following -
(i)information in one or more statements, each made by a qualified person;
(ii)information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.
(2)Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless -
(a)he is dead;
…
(3)This section makes a statement admissible notwithstanding -
(a)the rules against hearsay;
(b)the rules against secondary evidence of the contents of a document;
(c)that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or
(d)that the statement is in such a form that it would not be admissible if given as oral evidence, but does not make admissible a statement which is otherwise inadmissible.
(4)Notwithstanding subsections (1) and (2), in any criminal proceedings a statement in a document which was made in the course of or for the purpose of -
(a)the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings;
(b)an investigation which led to the discovery of facts constituting or being constituents of the alleged offence;
(c)the preparation of a defence to a charge for any offence; or
(d)the preparation of the case of the prosecution in respect of any offence,
shall not be rendered admissible as evidence by this section.
…"
Navratil was a "qualified person" for the purposes of s 79C(1). By s 79B a "qualified person" is relevantly defined as:
"… a person who -
(a)had, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement; …"
The statutory declaration was clearly a "statement" as defined by s 79B. It was submitted to the learned trial Judge by counsel for the Crown that the declaration had been made to support Mr Navratil's 1990 tax return, which he sought to file late and was not excluded by any of the provisions in s 79C(4) of the Evidence Act. In that respect the learned Judge concluded that the document was not of a kind referred to in s 79C(4)(d) as the evidence about the statutory declaration and the contents themselves showed that it was made to support Mr Navratil's income tax return in circumstances where no group certificate of tax stamps sheet had been received from his employer Mine Exc.
His Honour then considered a further submission on behalf of the appellant that the evidence should be excluded in the exercise of the general discretion on the ground that its probative value was outweighed by the prejudicial effect. The learned Judge rejected that submission.
It was also contended at the trial on behalf of the Crown that, in any event, the general discretion of the trial Judge to exclude the evidence should not be exercised because of the high probative value of the statement which was also later referred to by counsel as being "extraordinarily high probative evidence". In this context the learned Judge himself referred to the "pretty stark observation that John Caratti is said to have made …". His Honour concluded that the general discretion to admit or refuse to admit the evidence should be exercised in favour of admissibility. The learned Judge also specifically relied on s 79C(4)(d) of the Evidence Act. It was submitted on behalf of Caratti, however, that the statutory declaration was not made for the purpose of supporting a statement of Mr Navratil's income and that in treating it as if it was, the learned Judge was in error.
The learned trial Judge ruled that the evidence was not excluded by s 79C(4), although, as his Honour put it:
"It may be accepted for present purposes … that the probative value of that [referring to the relevant evidence] may be substantial, at least in relation to an issue of some substance in this case, and that its prejudicial effect is considerable …"
In the result, however, the learned Judge refused to exercise the discretion to exclude the evidence on the ground of unfairness.
Mr John Hudson-Taylor, an investigating inspector of the ATO, later gave evidence (T4026ff) that he had commenced an investigation into group tax payments by Mine Exc, Dyonna and Ravenswood in November 1992. He gave evidence of his dealings with Mr Navratil, including oral evidence of the contents of the statutory declaration (MFI 14364) and associated payslips (MFI 14365) made before him on 30 December 1991. The statutory declaration was read in full to the jury. Mr Hudson‑Taylor agreed with a leading question by prosecuting counsel that Mr Navratil had "provided the statutory declaration in support of his income tax return for that year" (i.e. the year ended 30 June 1990).
When Mr Hudson-Taylor was cross-examined, it emerged that the statutory declaration had not been made for the purpose of supporting his 1990 income tax return. That had already been lodged with a statutory declaration dated 28 July 1990 attached to it. That declaration contained no reference to any discussion with the appellant (T4047). An assessment of income tax had issued to Mr Navratil before December 1991.
Following the cross-examination and re-examination of Mr Hudson‑Taylor, the objection to Mr Navratil's evidence was renewed. Debate on the objection was deferred until after the completion of re‑examination which continued to deal with the declaration. After hearing further submissions the learned trial Judge ruled the evidence to be inadmissible, as being within the exclusion contained in s 79C(4)(b) of the Evidence Act, which excludes, in criminal proceedings, a statement in a document which "… was made in the course of or for the purpose of … an investigation which led to the discovery of facts constituting or being constituents of the alleged offence". An application by the defence to discharge the jury was refused.
It was submitted on behalf of Caratti that the learned Judge correctly held the evidence to be inadmissible by virtue of s 79C(4)(b). It was also submitted that the evidence was inadmissible by virtue of s 79C(4)(c). Alternatively, it was submitted that the evidence should have been excluded in the exercise of discretion, when the matter was first raised, as the probative value of the evidence, which could not be the subject of cross-examination, was outweighed by its prejudicial effect and it was unfair to admit the evidence.
By a notice of contention in the appeal the Crown contended that the learned trial Judge erred in law in ruling that the Navratil evidence was inadmissible. Alternatively, it was submitted that even if the evidence was inadmissible, the trial Judge did not err in the exercise of his discretion not to discharge the jury and, in all the circumstances, the direction ultimately given to the jury about the evidence did not result in there having been any miscarriage of justice.
Counsel for the Crown submitted in this Court in Caratti that, properly construed, s 79C(4)(b) of the Evidence Act refers to potentially self‑serving or otherwise potentially unreliable statements made for the purposes of or in contemplation of criminal proceedings. It was submitted that, so construed, s 79C(4)(b) did not operate to exclude the Navratil material. On the contrary, it was submitted that the content of his statutory declaration and payslips were admissible under s 79C of the Evidence Act as being:
(a)a statement made by a qualified person, namely, a person who at the time it was made, had or may reasonably be supposed to have had, personal knowledge of the matters dealt with by it: s 79C(1)(a) and s 79B; and
(b)a statement made by a person who could not be called as a witness because he was dead: s 79C(2)(a).

The learned trial Judge, however, ruled that the Navratil evidence was inadmissible because the declaration had been made in the course of or for the purpose of an investigation which led to the discovery of facts constituting or being constituents of the alleged offence, namely, the conspiracy to defraud the Commonwealth, and so fell within the exclusion in s 79C(4)(b).
It was further submitted that, having correctly held that s 79(4)(a) could not apply in these circumstances because it could not be argued that the discussion between Mr Navratil and Mr Hudson‑Taylor on 30 December 1991 was in the course of the investigation of the facts which constituted or were constituents of the offence of conspiracy to defraud the Commonwealth by the dishonest non‑remission of its group tax instalments, the learned Judge erred in holding that at the relevant time there was an investigation being made by Mr Hudson‑Taylor of a complaint made by Mr Navratil in the course of or for the purpose of an investigation under s 79C(4)(b). The relevant part of the ruling by the learned trial Judge was that (T4171 - 4172):
"There is a clear difference in the wording between paragraph (a) and paragraph (b) because paragraph (b) is not confined to an investigation of the facts constituting or being constituents of the offence of conspiracy to defraud the Commonwealth but is concerned with a broader category of investigation, that is an investigation or, as I would read it, any investigation which leads to the discovery of facts constituting or being constituents of the alleged offence, that is, the offence now alleged in the indictment, the offence of conspiracy to defraud the Commonwealth.
So under those circumstances it matters not what is the character of the investigation except, it seems to me, that the necessary link between it is that it leads to the discovery of the facts in question, properly described in the way that the subsection and paragraphs (a) and (b) of the subsection do.
So I would not see the capacity to restrict by reference to the word 'investigation' the occasion to which paragraph (b) has application in a way which would exclude what was happening as between Taylor and Navratil on 30 December 1991. It seems to me on all the evidence that there was then an investigation being carried out by Taylor in the matter of complaint. Whether it be in anybody's mind that it should lead to any criminal proceedings or should lead to civil recovery or might not have led anywhere at all seems to me to be immaterial. There was an investigation nonetheless of a complaint made by Navratil which was being conducted by Taylor at the relevant time. So the question in relation to whether the section renders the statement admissible falls to be determined, in my opinion, by reference to the question whether it led to the discovery of facts constituting or being constituents of the alleged offence."
Counsel for the Crown submitted on the appeal to this Court that, properly construed, s 79C(4)(b) of the Evidence Act refers to potentially self‑serving or otherwise potentially unreliable statements made for the purposes of or in contemplation of criminal proceedings. It was submitted that, so construed, s 79C(4)(b) did not operate to exclude the Navratil material.
The provisions in ss 79B -79G of the Evidence Act were enacted to give effect to the recommendations of the Report on the Admissibility in Evidence of Computer Records and Other Documentary Statements - Project No 27 Part 1 of the Western Australian Law Reform Commission ("WALRC") dated 15 July 1980. The WALRC was concerned to provide safeguards in respect of the admissibility in criminal proceedings of documentary statements containing a hearsay element. In par 3.22 of the Report the WALRC said:
"… A safeguard which specifically relates to criminal proceedings which the Commission recommends is -
an exclusion of statements made or recorded for the purpose of or in contemplation of criminal proceedings save for circumstances in which such statements are admissible other than pursuant to the provisions of the section.
Apart from these safeguards the Judge in a trial has considerable scope to comment on evidence in his direction to the jury."
There was a further reference to such statements in par 3.32 of the Report as follows:
"The Commission stated that one of the dangers of admitting documentary statements in criminal proceedings was that it could lead to the introduction of fabricated evidence. The greatest danger arises with statements made during or following an investigation into a crime. The Commission therefore recommends that in criminal proceedings a statement made or recorded in connection with the preparation of a case of the defence or prosecution, or with any investigation relating to or leading to a criminal proceeding, should not be admissible by virtue of the Commission's proposed legislation, unless it is otherwise admissible at law. The limitation should not, however, apply to a statement in a record made prior to the instigation of a criminal proceeding or investigation if it is merely reproduced or derived between that time and the time of the trial."
The WALRC attached as Appendix II of the Report a draft of amendments to the Evidence Act to give effect to its recommendations, together with a commentary. Section 79C(4) appears in the draft in the form in which it was subsequently enacted. The commentary on the provision said only:
"This is a new provision based on section 55(3) of the Evidence Act 1958-1978 (Vic). Its purpose is to prevent a statement recorded for the purpose of or in contemplation of criminal proceedings from being admitted: see paragraph 3.32 of the Report." (my italics)
It was submitted in Caratti by counsel for the Crown that, if literally construed, the potential width of s 79C(4)(b) as applied to the facts of that case was so wide as to lead to a result that is "manifestly absurd or is unreasonable" in terms of s 19(1)(b)(ii) of the Interpretation Act 1984 (WA) ("the Interpretation Act"). It was further submitted that it was necessary to apply s 19(2) of the Interpretation Act, which provides that a relevant report of a "Law Reform Commission" that was laid before either House of Parliament and the relevant Second Reading Speeches may be considered by a court in the interpretation of a provision. In my judgment in Caratti at pars [221] - [224] I said:
"221This reflects the common law pursuant to which Law Reform Commission reports on which legislation has been based have long been accepted as material relevant to interpretation: Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503; Barker v The Queen (1983) 153 CLR 338; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; and Newcastle City Council v GIO General Ltd (1997) 72 ALJR 97 at 112 per McHugh J. It is apparent from the report of the WALRC that the only statements which should be excluded from the operation of the relevant provisions were those made 'for the purpose of, or in contemplation of, criminal proceedings'. The intention was to create a regime identical with that established under s 55 of the Evidence Act 1958 (Vic) ("the Victorian Act"). The report of the Law Reform Subcommittee of the Chief Justice of Victoria ('the Subcommittee') recommended the adoption of a new s 55 and at pp 3-4 of the report stated:
'The wide definition of the word "business" in section 3, gave rise to some fears that statements in a police brief or statements compiled for the purpose of being tendered in evidence for the defence might, by virtue of that definition, become admissible in criminal proceedings. There was general agreement in the Subcommittee that it was desirable to exclude self-serving statements of that character from evidence but the drafting of a provision to give effect of that view was not easy.
Whilst it might be said that this matter could be dealt with by exercise of the discretions by subsection (8) the Committee felt that it was better that express provision should be made. Accordingly, subsection (3) is included expressly to remove from the scope of the new section 55 statements made in the course of an investigation of a crime, whether by the police or other investigators, or the preparation of the defence. It is believed that the problem does not arise under the UK Criminal Evidence Act 1965, having regard to the more limited definition of "business" contained in section 1(4) of that Act …'
222The definition of 'business' in the Victorian Act was:
' "Business" includes public administration and any business profession, occupation, calling, trade or undertaking whether engaged in or carried on by the Crown, or by a statutory authority, or by any other person, whether or not it is engaged in or carried on for profit.'
223The general approach of the Victorian Act in respect of the amendment concerning computer records and documentary hearsay evidence differs from the approach adopted in this State. The Evidence Act, as amended in accordance with the recommendations contained in the WALRC report and the Evidence Amendment Act 1987 (WA) was not predicated on nor limited to 'business records' as such, but simply applied to statements contained in documents which were made, directly or indirectly, by 'qualified persons'. In Connell v The Queen (No 6), supra, at 191 - 192 Malcolm CJ, Pidgeon and Nicholson JJ said:
'It is apparent that the Commission intended that the Evidence Act would be amended in respect of criminal proceedings so as to require the giving of evidence by the supplier of information unless one of the stated exceptions had application and so as to equate civil and criminal proceedings in a manner which was not limited to business records. …
The provisions subsequently enacted in Western Australia are recognised in Cross on Evidence (4th ed, 1974) 1027, par 35190) as not limited to documents which are business records and as being an amalgam of the Evidence Act 1938 (Eng) model and various business records models.'
224In my opinion, the interpretation of s 79C(4)(b) adopted by the learned trial Judge in this case would give the exclusion a much wider operation than that envisaged or intended by the WALRC and the legislature which enacted the provision in the form recommended. The learned trial Judge himself gave an example of such a case where the fact that a statement was made by a person in the course of a complaint about his or her dog would render inadmissible a statement made in the course of the same investigation which was relevant to proof of a conspiracy to defraud (T4155). This is a case in which a literal rather than a purposive construction produces an absurdity. In such a case, the purposive approach should prevail: see Macquarie Bank Ltd v Fociri Pty Ltd, supra, at 221; and Pearce & Geddes, Statutory Interpretation in Australia (4th Ed, 1966) at [Ch 2]."
The Navratil evidence as stated in par 9 of the statutory declaration was that his relevant tax return had not been lodged by him at the required time for the following reasons:
"On or about the 12th or 14th of May 1989 I commenced working for John Caratti and Mine Exc P/L. In the beginning we went to buy a drill for Mine Exc. John Caratti said that he would pay me $720‑00 cash in hand per fortnight after tax and $720‑00 cash without tax per fortnight if I stay with him and operate this drill for one year. It happened that he lost a contract at the end of April 1990. I was with him two months after that without pay. He said he would let me sub‑contract then the drill will get work again. I was sub‑contracting from roughly the first half of July 1990. In the beginning it was $12‑00 per hour and 40 cents per metre. Later it was $1‑00 per metre at 250 to 300 metres per day. Before I departed from his office I deposited two Prescribed Payment booklets with John Caratti completed at Part A with my name, address, tax file number and signature but no date. After I had been a sub‑contractor I never received any prescribed payment forms from John Caratti or Mine Exc. After completing the first year with John Caratti I went to see him personally in his office and asked him for a group certificate. He said to me, 'Nick, you are crazy, how can I give you a group certificate when I never paid one fucking cent in tax?'.
As dictated to me by Nicholas Navratil at the Aust Tax Office Perth 30 December 1991."
The statutory declaration was made on a printed form which was required to be completed by a person who was not in possession of a group certificate, tax stamp sheet or tax stamps in respect of instalments made from his earnings during a relevant period. In this particular case, the declaration said that the group certificate had not been received by Mr Navratil and contained further details of his employment from 1 July 1989 to 30 June 1990 for which the gross earnings of Mr Navratil were $30,018.
The critical question in Caratti was whether the statement contained in the statutory declaration was made in the course of or for the purpose of an investigation which led to the discovery of facts constituting or being constituents of the alleged offence. In that case, the relevant offence was the offence of conspiracy to defraud the Commonwealth by the dishonest non‑remission of group tax instalments. The statement was manifestly made by Mr Navratil because he was unable to properly complete his taxation return for the 1989‑90 taxation year because he had not received a group certificate from his employer. The statutory declaration recorded the circumstances under which his request for a group certificate was refused. In my view, the statement was not one made in the course of or for the purpose of any relevant investigation. It was made by Mr Navratil in the course of or for the purpose of enabling him to comply with the requirements of the Income Tax Assessment Act for the relevant year.
The question in the present case is whether the statement by Cooke to Mr Jenkins or any other statement by Cooke which is sought to be relied upon was made under circumstances which would render it inadmissible under s 79C(4)(b). No argument was addressed to me on this issue. In my opinion this is a matter that should be considered by the full Court of Criminal Appeal. In any event, subject to subs (2), the precondition to the operation of s 79C, as provided in s 79C(1), is the existence of proceedings in which direct oral evidence of the relevant facts or matters would be admissible. In this case the relevant fact is said to be that Cooke confessed to a particular offence or offences, including the offence of which the appellant was convicted. In my view, the relevance of any particular confession is a matter which would need to be demonstrated at the substantive hearing of the appeal. Had Cooke still been alive, the question would arise whether direct oral evidence by him that he had committed the offence of which the appellant was convicted or any other offence would be admissible. That question would need to be answered in the affirmative in each case before the relevant evidence could be admitted in the appeal. In my view these are matters to be determined by the full Court of Criminal Appeal.
The remaining matters deposed to in pars 4(a) to 4(h) in Ms Blackburn's affidavit are all inadmissible hearsay. Those who were interviewed by Ms Blackburn would need to be called to give relevant evidence of the matters to which reference is made by Ms Blackburn or their evidence given by affidavit. If and when matters became known to those who were defending the appellant should be proved by evidence from the appellant or his counsel and solicitors at the time.
As to the statements made by the two jurors referred to in par 4(j), the questions whether there was a view and whether the appellant was present may be answered by reference to the transcript of the trial or by evidence of persons who were participants in the trial, including the appellant's solicitors and counsel.
The appellant has abandoned reliance on the statutory declarations referred to in par 4(k).
Ms Blackburn says in par 4(l):
"On 9 February 2000 I met in Claremont William Russell Haight a crash reconstruction expert and witnessed his reconstructions of the events which led to the death of Anderson. I have read his report and viewed the video and confirm them in so far as I am able."
It is objected that this contains inadmissible hearsay and expression of opinion. Insofar as Ms Blackburn says that she witnessed Mr Haight's reconstructions, read his report and viewed the video, the evidence is not either inadmissible hearsay or an expression of opinion. Whether, and if so to what extent, the evidence is relevant is another matter. Insofar as Mr Haight expresses his opinion as an expert, the purported confirmation of his report could only go to corroborate what happened at the reconstruction as distinct from any opinion expressed by Mr Haight. Whether, and to what extent, such confirmation is relevant is not a matter on which I am able to rule at this stage.
As to par 4(m), the evidence of the interview with Mr Condren, the former police officer, contains inadmissible hearsay. This evidence should come from Mr Condren. As to whether it was known to the defence, I repeat my comment about the proper source of such evidence. The evidence of Ms Blackburn that she interviewed Mr Condren on 14 May 2000 is admissible to the extent that it fixes the time when his evidence was made known to her, assuming without deciding that it is otherwise relevant.
Further Affidavit of Estelle Blackburn sworn 18 October 2000
In this affidavit Ms Blackburn refers to the fact that she had access to the police files relating to the appellant and Cooke and was given permission to make shorthand notes of the contents of files. The facts asserted are not admitted save for pars 1, 2 and 8. Insofar as the affidavit purports to reproduce extracts from the files, it is inadmissible as secondary evidence of the contents of documents. If and to the extent that the information is relevant, the relevant files should be subpoenaed and proved in the normal way. The alleged copy of a confession by Cooke which purports to have been witnessed by one Gordon Moorman should likewise be subpoenaed and proved in the normal way. It is conceivable that, subject to questions of relevance, copies of documents obtained could be admitted by the Court as true copies.
Affidavit of Maureen Greenhalgh sworn 11 October 2000
Ms Greenhalgh describes an incident at about midnight on Friday 20 May 1960 when she was walking from the Queen's Park railway station along George Street with a Georgina Pitman when she was hit by a car under circumstances which imply that she was deliberately run down. The facts asserted in pars 1 to 8, par 10 first sentence, and par 13 are not in dispute. The tender of the affidavit is objected to on the basis of relevance and specific portions are objected to for other reasons. I am not at this stage asked nor am I prepared to rule on the issue of relevance. It is stated in par 9 that:
"The Western Australian Police investigated the incident but no one was charged."
It is objected that this is inadmissible hearsay. Counsel for the appellant contends that Police records demonstrate that the incident deposed to was reported to the Police but no arrest was made. It is assumed that no issue is taken with the latter assertion. In my opinion, however, unless the Crown is prepared to admit the fact, it will be necessary for the relevant record to be produced and proved.
Paragraph 10 of the affidavit is to the effect that:
"The police officer with whom I dealt advised me and I believe that as a result of my description of the facts as I knew them and other investigations undertaken, the police had established that Eric Edgar Cooke was the perpetrator."

Paragraphs 11 and 12 of the affidavit are as follows:
"11.The police officer with whom I dealt also advised me and I believe that Cooke had confessed to the police that he was the person who drove the car in the hit‑run in which I was injured.
12.Annexed hereto and marked 'A' is a copy of the text of the handwritten confession of Eric Edgar Cooke made to police on 14/9/63. I am informed by Estelle Blackburn and believe the text to be a faithful transcription of that confession. The details of the incident described in the confession are consistent with the facts as I know them."
Each of these passages is objected to on the ground that it is inadmissible hearsay. The submissions on behalf of the appellant do not address the first of these objections, but no doubt the relevant facts can be proved by means of the production of relevant police records. As it stands, the objection to the first passage must necessarily be upheld.
As to par 11 of the affidavit the position is the same.
As to par 12, it is the second sentence which is objected to as inadmissible hearsay. That objection must be upheld. The correctness of the copy confession can be verified by the production of the original or the Crown may be prepared to accept that the document is a true copy of the relevant confession.
Affidavit of Georgina Perks sworn 11 October 2000
Ms Perks' affidavit also deals with the incident described by Ms Greenhalgh. The facts asserted in pars 1 to 9 and 13 are not disputed but the tender of the affidavit is objected to on the ground of relevance. That issue is not before me at this stage.
Paragraphs 10, 11 and 12 of her affidavit are as follows:
"10.The Western Australian Police investigated the incident but no one was charged.
11.In 1963 I was living in Geraldton with my husband when the police knocked at my door and informed me they had solved the case. They advised me that Eric Edgar Cooke had confessed to deliberately running us down in a stolen car and they had established he was the perpetrator.
12.Annexed hereto and marked 'A' is a copy of the text of the handwritten confession of Eric Edgar Cooke to the crime against me made to police on 14/9/63. I am informed by Estelle Blackburn and believe the text to be a faithful transcription of that confession. The details of the incident described in the confession are consistent with the facts as I know them."
The objections to these paragraphs are the same as in the case of Ms Greenhalgh. The objections are upheld to the same extent as in the case of Ms Greenhalgh and the same comments apply.
Affidavit of Terese Van den Bosch sworn 11 October 2000
Ms Van den Bosch's affidavit also deals with the incident described by Ms Greenhalgh and Ms Perks. The facts asserted in pars 1 to 11, par 13 first sentence, and par 16 are not disputed. Tender is objected to on the ground of relevance. That is not before me at this stage. The objections on the ground of hearsay are upheld to the same extent as in the case of Ms Greenhalgh and the same comments apply.
Affidavit of Kathlene Mavis Bellis sworn 12 October 2000
Ms Bellis describes an incident on 27 December 1958 when she was struck by a car under similar circumstances to those described by other witnesses. The facts asserted in pars 1 to 7, 9 and 11 are not in dispute. Tender of the affidavit is objected to on the ground of relevance. That issue is not before me.
Paragraph 8 of the affidavit states that:
"My husband reported the incident to the Western Australian Police, who investigated it but made no arrest."
This is objected to as hearsay. The objection must clearly be upheld. If the facts cannot be admitted they will need to be proved, subject to the question of relevance.
Paragraph 10 of the affidavit is as follows:
"Annexed hereto and marked 'A' is a copy of the text of the handwritten confession of Eric Edgar Cooke made to police on 16/9/63. I am informed by Estelle Blackburn and believe the text to be a faithful transcription of that confession. The details of the incident described in the confession are consistent with the facts as I know them apart from the date, which is incorrectly stated as April 1960."
No doubt the confession can be proved by other means if it is not an agreed or admitted fact. The second sentence is hearsay for the same reason as stated in relation to the affidavit of Ms Greenhalgh. In my opinion, the final sentence in par 10 is admissible. The confession is said to be exhibited only for the purpose of confirming and adopting its contents.
Affidavit of Glenys Woosnam sworn 11 October 2000
Ms Woosnam describes an incident on 9 April 1960 when she was struck by a car under similar circumstances to those described by other witnesses. The facts asserted in pars 1 to 4, 6 and 11 are not disputed but tender of the affidavit is objected to on the ground of relevance. That issue is not before me.
Paragraphs 9 to 12 of the affidavit are as follows:
"9.I was informed a damaged stolen car was found near the scene.
10.The Western Australian Police investigated the incident but made no arrests. They returned to me my watch, which was found it at the scene, and later my white clutch bag when it was found by children in a nearby stormwater drain.
11.In 1963 I was informed by the police that Eric Edgar Cooke had confessed to deliberately running me down and the police had established it was his doing.
12.Annexed hereto and marked 'A' is a copy of the text of the handwritten confession of Eric Edgar Cooke made to police on 14/9/63. I am informed by Estelle Blackburn and believe the text to be a faithful transcription of that confession. The details of the incident described in the confession are consistent with the facts as I know them."
It is apparent that par 9, the first sentence in par 10, par 11 and the second sentence of par 12 contain objectionable hearsay. The comments I have previously made apply.
It is noted that as to par 11, counsel for the appellant only relies on that paragraph to establish the year in which Ms Woosnam received the information. Whether and to what extent the timing is relevant does not appear.
Affidavit of Jill Connolly sworn 11 October 2000
Ms Connolly describes an incident on 13 May 1960 when she was struck by a car under circumstances similar to those described by other witnesses. The facts asserted in pars 1 to 4, 6 and 11 are not in dispute. Tender of the affidavit is objected to on the ground of relevance. That issue is not before me.
In par 5 of the affidavit she says that her next clear recollection after the incident with the car was waking up in hospital in great pain. Her leg was in plaster and she had stitches in her head. She also says that when she woke up in hospital:
"I was told at the time and believe that I had been hit by a car and that I had been found in the sand almost under its back wheel."
Objection is taken to this sentence on the ground that it is hearsay. If the circumstances are not admitted by the Crown no doubt they can be proved by other means, but the sentence is clearly objectionable hearsay.
Paragraphs 6, 7 and 8 of the affidavit are as follows:
"6.The incident was reported to the Western Australian Police and I was questioned many times but no one was arrested.
7.In 1963 I was called to Central Police Station where Detective Sergeant Bill Nielson read to me a confession made by Eric Edgar Cooke in which he described how he deliberately ran me down and I was informed that the police had established that Cooke was the perpetrator of the crime against me.
8.Annexed hereto and marked 'A' is a copy of the text of the handwritten confession of Eric Edgar Cooke to the crime against me made to police on 16/9/63. I am informed by Estelle Blackburn and believe the text to be faithful transcription of that confession. The details of the incident described in the confession are consistent with the facts as I know them."
Paragraph 6 is objectionable hearsay, as is the passage in that part of par 7 commencing, "in which", and the second sentence of par 8. As to par 7, it is not the belief of the deponent which is relevant, but the facts and circumstances which must be properly proved unless they are admitted.
Affidavit of Neeltje Schneider sworn 11 October 2000
Ms Schneider describes in incident in Bentley when she was seriously injured when run down by a motor vehicle while cycling home. The facts asserted to in pars 1, 2 and 3 are not disputed, but the tender of the affidavit is objected to on the ground of relevance. That issue is not before me.
In par 4 of her affidavit she says that she was informed and believes that her mangled bicycle had been found around the corner from where she was injured. It is objected that this evidence is hearsay. The objection must be upheld, although it is said on behalf of the appellant that the evidence is not relied upon to prove the truth of what was said, but merely the fact that this was what she was told which was the basis of her belief. In my opinion, her belief about what happened to the bicycle is of no relevance to the issues raised by the appeal.
Paragraph 5 of the affidavit is as follows:
"I have since been informed and believe that Eric Edgar Cooke confessed to the West Australian Police that he was the person driving a vehicle which struck me at and that the running me down was a deliberate hit‑run attack. I believe that Cooke was the offender. Annexed hereto and marked 'A' is a copy of the text of the handwritten confession of Eric Edgar Cooke to the crime against me made to police on 16/9/63. I am informed by Estelle Blackburn and believe the text to be a faithful transcription of that confession. The details of the incident described in the confession are consistent with the facts as I know them."
This paragraph is objected to on the same grounds as similar paragraphs in the case of Ms Greenhalgh and others. The objections are upheld to the same extent and the same comments apply.
Affidavit of David Priest sworn 14 October 2000
Mr Priest describes the circumstances in which his mother's car was stolen on 13 May 1960 and found the next day after it had been involved in an incident in which a girl had been run down in Belmont. The facts he asserts are not admitted. He says in par 7 of his affidavit that when he went to collect the car:
"… it was badly damaged, with a big dent on the bonnet and the windscreen was pushed in. There was blood on the car."
The second sentence is objected to on the ground that it is an inadmissible expression of opinion.
The objection is technically correct.
Paragraph 9 of the affidavit annexes a copy of what is said to be a handwritten confession of Eric Edgar Cooke made to police on 16 September 1963. As in the case of the other affidavits containing similar statements, the second sentence is inadmissible hearsay and the same comments as made in the case of Ms Greenhalgh apply.
Affidavit of John Barry Hansen sworn 11 October 2000
The facts asserted in this affidavit are disputed. Mr Hansen says that he was the first on the scene following the hit and run incident involving Rosemary Anderson on 9 February 1963. He made a statement to the Police on 14 February 1963, was listed as a witness at the appellant's trial, but was not called either by the Crown or the defence. He says that there were some errors in the statement which he would have corrected when giving evidence. He says that the statement omitted the fact that he saw a person sitting in a Simca car parked in Stubbs Terrace opposite the Shenton Park Railway Station. He saw that person leave the Simca and run about three metres from the road where a body was lying in the sand. He saw him pick up a female figure and carry her to the car. He placed her in the front seat and drove off. He opened both passenger doors. Mr Hansen says he pulled up about 10 metres behind the Simca, not 10 yards in front of it as stated in the statement.
He followed the Simca to Dr Quinlivan's surgery and observed what happened outside. Paragraphs 12, 13 and 14 of the affidavit are as follows:
"12.I have since been shown documents which I have been informed by Estelle Blackburn and believe are confessions made by Eric Edgar Cooke. In particular I have read the affidavit of Eric Edgar Cooke sworn 11 February 1964 in the matter of John Button, a copy of which is annexed hereto and marked 'A'. I confirm that the facts alleged in paragraph 7 thereof that both left hand doors of the Simca were open is correct.
13.I can confirm statements made by myself and two other witnesses that the female figure who I now know was Rosemary Anderson was lying about two or three yards from the side of the road and the distance of 15 or 18 inches which I believe was the assertion of the Crown case at the trial of John Button.
14.Annexed hereto is a document which I am informed by Estelle Blackburn and believe to be a transcription of a Precis of Evidence used by the Crown prosecutor at the trial of John Button. I confirm the statement made on the third page thereof that the position of the body of Rosemary Anderson was approximately two to three yards off Stubbs Terrace towards the railway line."
It is objected that these paragraphs contain inadmissible hearsay. The fact that the documents mentioned in par 12, including the affidavit of Eric Edgar Cooke sworn 11 February 1964, are what they purport to be is not something to which Mr Hansen can testify directly. His evidence about the matters referred to in them is to that extent dependent on the contents being independently proved, if they cannot be admitted by the Crown.
Paragraph 13 contains inadmissible hearsay in the reference to statements made by two other witnesses and "the assertion of the Crown case" at the appellant's trial. The evidence of Mr Hansen that Ms Anderson's body was lying two or three yards from the side of the road as distinct from 15 or 18 inches is relevant and admissible.
Paragraph 14 contains inadmissible hearsay to the extent that it refers to information provided by Ms Blackburn about the transcription of a Precis of Evidence used by the Crown prosecutor at the trial. If and to the extent that it is relevant, this would need to be independently proved as part of the appellant's case on the appeal. The Crown case at the trial should be recorded in the trial transcript.
Affidavit of Douglas Wilkie sworn 12 October 2000
The facts asserted in this affidavit are disputed. Paragraph 10 of Mr Wilkie's affidavit is as follows:
"Annexed hereto and marked 'A' is a copy of the affidavit of Eric Edgar Cooke sworn 11 February 1964. In paragraph 5 of the affidavit Cooke describes driving a Holden sedan deliberately attempting to run down a couple on a scooter who were not wearing safety helmets on Saturday 9 February 1963. The details of the incident described in that paragraph are entirely consistent with the facts of the incident as I remember them and I believe that they describe the same incident."
Earlier in his affidavit Mr Wilkie describes an incident in 1963 at a date and time he cannot recall when he was riding his Vespa motor scooter in Stubbs Terrace when a Holden sedan sped towards him from behind. Mr Wilkie turned west into Alfred Road. His passenger was screaming and he was terrified that the Holden was about to run them down. Just as it was about to hit them a car appeared coming towards them and the Holden dropped back. The affidavit annexes what Mr Wilkie was informed was a copy of an affidavit sworn by Cooke on 11 February 1964. Mr Wilkie's evidence about the affidavit is hearsay. The affidavit will have to be independently proved. If that is done the evidence of Mr Wilkie will be admissible.
Affidavit of Leon Blank sworn 11 October 2000
The facts asserted in this affidavit are not admitted. In October 1963, Mr Blank, then a Clinical Psychologist, carried out a psychological appraisal of Mr Cooke at Fremantle Prison. On one of his three visits Cooke confessed to serious crimes in addition to those for which he had been charged, but said that police refused to believe him. The Crown objects to this evidence on the ground that it is inadmissible hearsay. I will deal with this issue under the heading "Confessions by Eric Edgar Cooke" below.
Affidavit of Sally Cooke sworn 11 October 2000
Mrs Cooke is the widow of Mr Cooke. In the months prior to his execution on 26 October 1964 Mrs Cooke visited her husband regularly at Fremantle Prison. The facts asserted in pars 1, 2 and 3 are not in dispute, but the tender of the affidavit is objected to on the ground of relevance. That issue is not before me.
Paragraphs 4, 5 and 6 of her affidavit are as follows:
"4.During these visits I ascertained that he was worried about Button and Beamish and the fact that they had not been released. He was under the impression that when he had said it was he that had killed Rosemary Anderson and Gillian Brewer they would be released straight away. He was upset that no‑one would believe his confessions.
5.On one occasion I said to him 'They won't believe you because you have told so many lies'. In response he said 'Well I am telling the truth now. I did kill Rosemary Anderson and Jillian Brewer'.
6.On 27 October 1964, the day after the execution, I was visited at home by the late George Jenkins a methodist minister who tended to Eric in the hours before his execution. He told me and I believe that Eric had confessed to him that he had killed Rosemary Anderson and Jillian Brewer. George Jenkins also told me that this confession was made to him in the holding cell behind the gallows at Fremantle prison approximately 10 or 15 minutes prior to the execution."
The Crown objects to this evidence on the ground that it is inadmissible hearsay. I will deal with this issue under the heading "Confessions by Eric Edgar Cooke" below.
Affidavit of Mary MacLeod sworn 11 October 2000
Ms MacLeod relates an incident on the night of 25 November 1958 when she was 15 years old. She was living with her parents and her 9 year old sister at 55 MacLeod Road, Applecross. She was asleep in her bed in a back sleepout. When she woke up in the morning she found her parents at her bedside in a state of distress. She had a black eye and a headache. When she saw a doctor that day it was found that she had suffered concussion and a "Y‑shaped" hairline fracture of the left temple. She was confined to bed for six weeks. It was assumed that she had fallen out of bed and fractured her skull. The incident was not reported to the police. There was no sign of any one breaking into the house and nothing was noticed to be missing. She says that she was never interviewed by the police, the Crown or defence counsel for the appellant, Cooke or one Darryl Beamish and did not give evidence at any trial or appeal. These facts, which are asserted in pars 1 to 5 and 8 of the affidavit are not disputed. The tender of the affidavit is objected to on the ground of relevance, but that issue is not before me.
It is submitted that pars 6 and 7 of the affidavit contain inadmissible hearsay. These pars are as follows:
"6.In 1996 Estelle Blackburn showed me the police notes of Eric Edgar Cooke's confession to breaking into our house and hitting me over the head with something handy. The police note of his confession bore a tick and MacLeod was written beside it. I knew nothing of this confession before then.
7.Annexed hereto and marked 'A' is a copy of the text of the police note of Eric Edgar Cooke's verbal confessions to various break and enter crimes made to police following his apprehension and retained on the police file relating to Cooke. I am informed by Estelle Blackburn and believe the text to be a faithful transcription of that police note. The details of the incident marked as paragraph 1 therein as described in the note are consistent with the facts as I know them."

It is clear that the material referred to in these paragraphs cannot be proved by Ms MacLeod. As they stand they are inadmissible hearsay. Assuming that the alleged confession can be proved otherwise its admissibility and relevance are matters which should be determined at the hearing of the appeal.
Affidavit of Alix Ellyn Cooke sworn 1 November 2000
The facts asserted in pars 1 to 10 and 15 are not disputed, but the tender of the affidavit is objected to on the ground of relevance. That issue is not before me.
Ms Cooke relates an incident on the night of Saturday 8 August 1959 when she was living in the Nurses' Quarters of Royal Perth Hospital, but spending the weekend at a flat in Nedlands. During the night the flat was burgled and she was hit on the head causing a fractured skull. Money was taken from her purse. Paragraphs 11 to 14 of the affidavit are as follows:
"11.The Western Australian Police were notified and they inspected the flat, noting the back window was ajar. They later told me that a fire poker was missing.
12.In 1963 I was informed by the police that my assailant was Eric Edgar Cooke. I was told he had confessed to the attack and that the police had accepted his confession.
13.I have since been informed by Estelle Blackburn that the police have not accepted Cooke's confession and the attack on me is not established as his doing. I was not informed by the police of this change of opinion. I believe that Cooke is the perpetrator.
14.Annexed hereto and marked 'A' is a copy of the text of the handwritten confession of Eric Edgar Cooke made to police on 14/9/63. I am informed by Estelle Blackburn and believe the text to be a faithful transcription of that confession. The only difference in Cooke's confession to the facts as I remember them is that the six pounds taken by Cooke comprised a five pond [sic] note and two ten shilling notes not as he stated a five pound note and some change to the total of six pounds."
The result of the inspection and the fact that the fire poker was missing are facts which, if they are to be proved, need to be independently proved. As it stands, the evidence in par 11 of those matters is inadmissible hearsay, as is the information referred to in par 12 and the information attributed to Ms Blackburn in par 13.
Paragraph 14 is inadmissible to the extent that it refers to information provided by Ms Blackburn. The confession and the accuracy of the transcription is required to be independently proved, if the evidence is otherwise held to be admissible.
Affidavit of Anne Pettit sworn 12 October 2000
The facts asserted in pars 1 to 8, 10 and 12 are not in dispute, but the tender of the affidavit is objected to on the ground of relevance. That issue is not currently before me.
Ms Pettit describes an incident in which she was attacked in her flat in Broadway, Nedlands on the night of 3 March 1962 when an intruder attempted to strangle her. Paragraph 9 of the affidavit contains the statement that, "the Western Australian police investigated the attack but no one was charged". It is objected that this is inadmissible hearsay. I uphold the objection. The comments previously made in the similar cases already dealt with apply.
Paragraph 11 of the affidavit refers to a copy of the text of a handwritten confession made to Police by Mr Cooke on 13 September 1963. As in the case of Ms Greenhalgh, the second sentence is inadmissible hearsay. The comments made in relation to par 12 of the affidavit of Ms Greenhalgh apply.
Affidavit of Estelle Blackburn sworn 31 October 2000
This affidavit is concerned with an assault said to have been committed upon the late Margaret Esther Terese Fleury who died on 16 April 1968. The facts asserted are not admitted. It is apparent from par 1 and the affidavit as a whole that Ms Blackburn does not have personal knowledge of the fact of the assault or of the death. These facts insofar as they are relevant would need to be proved independently. This applies equally to the police notes referred to in par 5, the memorandum by Detective Wilcox referred to in par 6 and the transcription of the confession by Mr Cooke from the original on the police file.
Affidavit of Carmel Madeline Tonks sworn 9 October 2000
The facts asserted in pars 1 to 10 and 15 are admitted, but the tender of the affidavit is objected to on the grounds of relevance. That issue is not currently before me.
Ms Tonks describes an incident on Saturday 15 June 1963 when she was single and renting a unit in Smyth Road, Nedlands with two other girls. She was assaulted by an intruder who hit her in the chest, arm and face. A purse belonging to her room‑mate, who was absent, was stolen. Paragraphs 11 to 14 of the affidavit are as follows:
"11.The next day my room-mate discovered that her purse containing 15 shillings had been taken from the foot of her bed.
12.The police investigated the theft and assault but no one was charged.
13.I was later that year informed that Eric Edgar Cooke had confessed to attacking me with an umbrella. I believe that Cooke broke into my unit and assaulted me.
14.Annexed hereto and marked 'A' is a copy of the text of the handwritten confession of Eric Edgar Cooke to the crime against me made to police on 16/9/63. I am informed by Estelle Blackburn and believe the text to be a faithful transcription of that confession. The details of the incident described in the confession are consistent with the facts as I know them."
It is objected that each of these paragraphs contains objectionable hearsay. Counsel for the appellant says that par 11 is not relied upon. Paragraph 12 is inadmissible for the reasons stated with respect to the affidavit of Ms Greenhalgh and the same comments apply. The first sentence of par 13 is inadmissible hearsay. The belief in the second sentence is irrelevant. The second sentence in par 14 is inadmissible for the same reason as in the case of Ms Greenhalgh and the same comments apply.
Affidavit of Jonathon Adam Davies sworn 14 November 2000
This affidavit identifies two reports by one William Russell Haight which are said to contain the substance of the evidence he will give at the hearing of the appeal. The first is a copy of a report entitled "Crash Test - Report and Analysis". The second is a copy of a report entitled "Collision Reconstruction/Analysis of the 'Rosemary Anderson Collision' which took place on 9 Feb 1963 in Perth Western Australia".
The Crown objects that the reports of Mr Haight and the exhibits referred to therein are not in an admissible form and, in any event, are in dispute. In essence, the effect of Mr Davies' affidavit is that the report has simply been identified and is in the same position as if a copy of it had simply been sent to the Crown to provide advance notice of the expert evidence proposed to be led on behalf of the appellant and the material on which the expert has relied. Mr Davies' affidavit makes it clear that Mr Haight will be called to give evidence about his report. On that basis the objection to admissibility of the report is premature, pending the witness giving primary evidence in relation to the report, whether by affidavit or orally. I would anticipate that insofar as the report is admitted into evidence the Crown will wish to cross‑examine the witness.
Affidavit of Derek John Tomlinson sworn 12 October 2000
The facts alleged in this affidavit are not in dispute, but the tender of the affidavit is objected to on the ground of relevance. That issue is not currently before me.
Affidavit of Trevor Stephen Condren sworn 12 October 2000
The facts asserted and the opinion expressed are disputed.
Confessions by Eric Edgar Cooke
A major part of the appellant's case is that there was evidence which was not given at his trial or on appeal which suggests that Cooke and not the appellant was responsible for the death of Ms Anderson. That evidence includes a confession or confessions by Cooke to police and others that he was the person responsible for running down Ms Anderson rather than the appellant. Ms Anderson was the victim of a hit and run attack when she was struck by a car while walking along the side of the road in Stubbs Terrace, Shenton Park on 9 February 1963.
In Bannon v The Queen (1995) 185 CLR 1 the High Court most recently considered the application of the rule against the admissibility of hearsay evidence in relation to out of court statements made by one co‑accused (who did not give evidence at the trial) which were said to be exculpatory of the appellant. The appellant contended that the Court of Criminal Appeal of Victoria erred in not upholding a submission that the trial Judge should have admitted the co‑accused's statements in exculpation of the appellant, although the statements were hearsay and not admissible to inculpate the appellant. It was contended in that case that the exceptions to the rule against hearsay should be enlarged to include statements against penal interest in addition to statements against proprietary or pecuniary interest by a person unable to testify. Further or alternatively, it was contended that there should also be an exception where the statements were made under circumstances which satisfied two conditions, namely, necessity and reliability.
Dawson, Toohey and Gummow JJ said at 22:
"Out of court statements are not evidence of the truth of what is said unless the statement falls within an exception to the rule against hearsay. One such exception admits evidence of a confessional nature against the maker. Another renders admissible a statement made by a third party, since deceased, which is against his or her pecuniary or proprietary interest.
As the law stands in this country, there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co‑accused or by a third party [See, eg, In re Van Beelen (1974) 9 SASR 163; R v Szach (1980) 23 SASR 504; Wade v Gilroy (1986) 83 FLR 14; R v Greatorex (1994) 74 A Crim R 496]. No Australian court, at least in any reported decision, appears to have taken the approach adopted by the Court of Appeal in England in R v Beckford [[1991] Criminal Law Review 833] that if the consequences of inadmissibility are that the jury does not hear an alternative version of the events giving rise to the charge, the conviction of an accused may be unsafe and unsatisfactory and accordingly set aside. It should be noted that in Beckford the co‑accused did not give evidence and the prosecution was unable to give evidence of the confession because the trial judge held that it was not given voluntarily [In R v Rogers [1995] 1 Cr App R 374 at 381 a differently constituted Court of Appeal refused to apply Beckford on the ground that the decision 'turns upon its own special facts'].
In Lobban v The Queen [[1995] 1 WLR 877; [1995] 2 All ER 602] the Privy Council said that a judge in a criminal trial had no discretion to exclude the exculpatory part of a mixed statement containing admissions as well as an exculpatory explanation on which a defendant wished to rely, notwithstanding that the exculpatory material was prejudicial to a co‑defendant. Their Lordships said that where the admission of evidence which was admissible against one defendant but not against his co‑defendant resulted in real risk of prejudice to the co‑defendant, the judge should ensure that the interests of the co‑defendant were protected by explicit directions to the jury to the effect that the statement of one co‑defendant was not evidence against the other or, in the last resort, by ordering separate trials [See also Webb v The Queen (1994) 181 CLR 41 at 56, 62-67, 80-81, 92-95, where the Court discussed the warning to be given when an accused gives evidence implicating another accused].
The appellant submits that while support for his submission is lacking in decisions of the Australian courts, this Court should adopt the approach taken in Canada and the United States and hold that a third party confession, at any rate a confession by a co‑accused which exculpates an accused, is an exception to the rule against hearsay. The appellant prays in aid statements in decisions of this Court that the hearsay rule should not be applied inflexibly [The appellant referred to Walton v The Queen (1989) 166 CLR 283 at 293-294; R v Benz (1989) 168 CLR 110 at 117-118, 121, 143-144; Pollitt v The Queen (1992) 174 CLR 558 at 593-596, 609-611, 620-621]."
Their Honours went on to consider the limitation of the scope of the exception to the rule against hearsay of declarations by a third party to declarations against pecuniary or proprietary interest, but excluding statements against penal interest: Sussex Peerage Case (1844) 11 Cl & Fin 85; 9 ER 1034. At 23 - 24 their Honours said:
"While the common law recognises an exception against hearsay in the case of a declaration by a third party, since deceased, against interest, traditionally the interest has been confined to a pecuniary or proprietary interest rather than a penal interest [Sussex Peerage Case (1844) 11 Cl & Fin 85 [8 ER 1034]]. That limitation has been much criticised [See, eg, Wigmore on Evidence, Chadbourn rev (1974), vol 5, pars 1476-1477; Baker, The Hearsay Rule (1950) pp64 et seq; Donnelly v United States (1913) 228 US 243 at 277, per Holmes J]. It is no longer accepted in Canada, following the statement by the Supreme Court of Canada in R v O'Brien [[1978] 1 SCR 591 at 598-599; (1977) 76 DLR (3d) 513 at 518; 35 CCC (2d) 209 at 214] that a 'person is as likely to speak the truth in a matter affecting his liberty as in a matter affecting his pocketbook'. Furthermore, the requirement that the declarant be deceased has broadened into a wider test of 'unavailability' [Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992) pp183-184]. This includes the disappearance of the declarant [R v Pelletier (1978) 38 CCC (2d) 515] and, possibly, circumstances in which privilege is claimed against the giving of such evidence [cf R v Agawa and Mallet (1975) 28 CCC (2d) 379 where the Ontario Court of Appeal held that it is insufficient that the declarant invokes the privilege against self‑incrimination]. In the interests of 'fairness', the extension to declarations against penal interest operates only in relation to declarations which exculpate the accused [Lucier v The Queen [1982] 1 SCR 28; (1982) 132 DLR (3d) 244; 65 CCC (2d) 150]."
Their Honours noted at 24 that in R v O'Brien [1978] 1 SCR 591 at 599 Dickson J, who delivered the judgment of the court, affirmed the requirements for admissibility stated by Hamilton LJ in Ward v H S Pitt & Co; Lloyd v Powell Duffryn Steam Coal Co [1913] 2 KB 130 at 137 - 138, a decision reversed on other grounds: [1914] AC 733. One of the requirements was that a statement by a co‑accused that he alone was responsible for the offence of being in possession of drugs for the purpose of trafficking was held inadmissible because the proceedings against the co‑accused had been stayed and he did not believe he would be prosecuted. In Demeter v The Queen [1978] 1 SCR 538 an alleged confession to a friend by a person already sentenced to life imprisonment for another crime was held inadmissible.
Dawson, Toohey and Gummow JJ said in Bannon at 24 - 25 that:
"In the last few years Canadian courts have taken a broader approach still to the admission of hearsay evidence, permitting such evidence to be adduced where the evidence is 'reliable' and its reception in hearsay form is reasonably necessary. In R v Khan [[1990] 2 SCR 531; (1990) 59 CCC (3d) 92], a judgment of the Supreme Court of Canada delivered by McLachlin J, evidence against an accused charged with sexual assault against a young child was given in the form of evidence from the child's mother as to what the child had told her. Necessity was inferred from the fact that the child was incompetent to give evidence and reliability from a number of circumstances including the lack of a motive for falsification. Khan was followed in R v Finta [(1992) 92 DLR (2d) 1; 73 CCC (3d) 65] and it has been applied in a number of other Canadian cases [See, eg, R v Chahley (1992) 72 CCC (3d) 193; R v Smith [1992] 2 SCR 915; (1992) 94 DLR (4th) 590; 75 CCC (3d) 257; R v Unger (1993) 83 CCC (3d) 228; R v Kharsekin (1994) 88 CCC (3D) 193; R v Edwards (1994) 91 CCC (3d) 123].
This wider approach, which looks to 'necessary and reliable' criteria, has led to the admission of evidence which inculpates as well as evidence which exculpates an accused. And while, not surprisingly, the present appellant wished to confine any new exception to the rule against hearsay to statements exculpatory of him, he accepted that where a statement was capable of bearing both an exculpatory and inculpatory meaning, if an accused asked for the statement to be admitted as part of his case, there was no entitlement to a direction to the jury that they use the statement only if, or to the extent that, it carried an exculpatory significance."
Their Honours went on to consider the developments in the United States. Previously, the leading case was Donnelly v United States (1913) 228 US 243. In that case, it was held that the common law as it applied in the federal courts excluded hearsay evidence of a confession by a third party, then deceased, of guilt of the crime with which the defendant was charged. The majority held that the evidence was rightly excluded on the basis of authorities which included the Sussex Peerage Case. Holmes J at 278 dissented on the ground that there was no binding authority on the admissibility of the confession as a declaration against interest because "no other statement is so much against interest as a confession of murder".
It was against this background that Dawson, Toohey and Gummow JJ in Bannon at 25 - 26 referred to the decision of the Supreme Court of the United States in Chambers v Mississippi (1973) 410 US 284 as follows:
"In Chambers v Mississippi [(1973) 410 US 284] the issue before the Supreme Court upon certiorari was whether there had been a violation of the constitutional right of the accused to due process by reason of a combination of two matters. The first was refusal to permit Chambers to cross-examine a third party who had made but later repudiated a written confession; Chambers had called the third party and he was in court. The second was the rejection, as hearsay, of the testimony of three persons to whom the third party had confessed. The Supreme Court held [Chambers v Mississippi at 302] that, taking these two matters together, the result had been a denial of due process. The Court pointed out [at 301] that, in Donnelly, the declarant had been unavailable at the time of the trial. Further, since Donnelly there had been a change in the applicable law of evidence. Exclusion of declarations against penal interest was no longer required under the new Federal Rules of Evidence which took effect on 1 July 1973. Rule 804(b)(5) provides that, if the declarant is unavailable as a witness, a statement is not excluded by the hearsay rule if a court determines that the statement is offered as evidence of a material fact, it is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and the general purposes of the Rules and the interests of justice will best be served by its admission. However, such a statement may not be admitted under this exception unless the proponent of it has made known his intention and given particulars to the adverse party sufficiently in advance of the trial to provide a fair opportunity to prepare to meet it.
In Chambers, the Supreme Court was not ruling upon the common law of Mississippi. However, it noted [at 299-300] that a number of States had discarded the common law rule which denied any exception to the hearsay rule in favour of declarations made against the penal interest of the declarant, and stated that the rationale for the traditional position had been the subject of considerable scholarly criticism. The Court also observed that, in the instant case, the circumstances provided 'considerable assurance of … reliability' [Chambers at 300. The existence of comparable circumstances is discussed in People v Craven (1973) 299 NE 2d 1; People v Fletcher (1975) 546 P 2d 980; People v Pietrzyk (1977) 369 NE 2d 1299. See also People v Edwards (1976) 242 NW 2d 739 where a majority of the Supreme Court of Michigan treated reliability as going to weight rather than admissibility]."

Their Honours noted at 27 that the tests of admissibility in Canada and the United States required that the confession must have been made to the "immediate prejudice" of the maker and, in the United States at least, it must have been corroborated by other evidence. Reference was made to the observation in Wigmore on Evidence, Chadbourn rev (1974) vol 5 par 1462 that:
"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 could create liability is beside the mark."
In the result, Dawson, Toohey and Gummow JJ concluded at 28 - 29 that it was unnecessary and inappropriate for the High Court to determine whether it should follow the decisions of the Supreme Courts of Canada and the United States to extend the exceptions to the rule against hearsay to third party confessions. This was because, on the facts, the requirement of prejudice and reliability which underlie the admissibility of such statements in Canada and the United States were not satisfied.
Deane J said at 12 - 13 that he was in general agreement with Dawson, Toohey and Gummow JJ in respect of what they said regarding:
"… the appellant's submissions supporting either a broad flexible relaxation of the hearsay rule to allow evidence of inherently reliable hearsay statements 'at the instance' of an accused or a widening of the exception from the hearsay rules of some statements made against interest."
Brennan CJ at 7 - 8 was opposed to the flexible application of the hearsay rule in case of this kind based upon the criterion of reliability which had been proposed in some of the judgments in Walton v The Queen (1989) 166 CLR 283 at 293 per Mason CJ; R v Benz (1989) 168 CLR 110 at 143 - 144 per Gaudron and McHugh JJ; and at 117 - 118 per Mason CJ; and Pollitt v The Queen (1992) 174 CLR 558 at 565 - 566 per Mason CJ; and at 610 per Toohey J. Brennan CJ adhered to the reasons his Honour had expressed in Pollitt at 571 - 583 for rejecting the admissibility of hearsay evidence based "simply on the judge's opinion of its reliability". The Chief Justice then considered whether there should now be recognised an additional exception to the rule against hearsay to admit some confessional statements previously excluded. His Honour notes the rejection in the Sussex Peerage Case, supra, of declarations by deceased persons against penal interest and said at 8 - 10:
"That view, though followed by the Supreme Court of South Australia in In re Van Beelen [(1974) 9 SASR 163 at 206-207, 209], by the House of Lords in R v Blastland [[1986] AC 41 at 52-53], by the English Court of Criminal Appeal in R v Turner [(1975) 61 Cr App R 67 at 88] and by the Supreme Court of the United States in Donnelly v United States [(1913) 228 US 243 at 273-276], was powerfully criticised by Holmes J in the last mentioned case [at 278]. In Queensland [See R v Zullo [1993] 2 Qd R 572 at 574; but cf R v Greatorex (1994) 74 A Crim R 496] and in the United States [See People v Edwards (1976) 242 NW (2d) 739 at 741-742 and the references in R v O'Brien [1978] 1 SCR 591 at 598-599; (1977) 76 DLR (3d) 513 at 518; 35 CCC (2d) 209 at 214] the Sussex Peerage rule has been doubted. It was also trenchantly attacked by Wigmore [Wigmore on Evidence, Chadbourn rev (1974) vol 5 pars 1476, 1477].
Holmes J's criticism of the rule in Sussex Peerage struck a responsive chord in the Supreme Court of Canada in Demeter v The Queen [[1978] 1 SCR 538 at 534-535; (1977) 75 DLR (3d) 251 at 254; 34 CCC (2d) 137 at 140], R v O'Brien [[1978] 1 SCR 591 at 598-599; (1977) 76 DLR (3d) 513 at 517-518; 35 CCC (2d) 209 at 214] and Lucier v The Queen [[1982] 1 SCR 28; (1982) 132 DLR (3d) 244; 65 CCC (2d) 150]. The principles which the Supreme Court of Canada approved for the admission of an out-of-court confession by an unavailable [Lucier SCR at 33; DLR at 248; CCC at 154] declarant include the following [O'Brien SCR at 599; DLR at 519; CCC at 215; Demeter SCR at 544; DLR at 255; CCC at 141]:
'1.       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 …
2.        The vulnerability to penal consequences would have to be not remote.
…
5.        The declarant would have to be unavailable by reasons of death, insanity, [or] grave illness which prevents the giving of testimony even from a bed, or absence in a jurisdiction to which none of the processes of the Court extends.' [Principle 5 may not be exhaustive: see R v Pelletier (1978) 38 CCC (2d) 515 at 525]
Unless principles of this kind are adopted to limit the admissibility of evidence of out-of-court declarations against penal interest, false confessions untested by cross-examination would bedevil criminal trials. Gaol-house confessions allegedly made by prisoners who would decline to admit guilt testimonially would be a commonplace.
In Canada, out-of-court declarations against penal interest are allowed as exceptions to the hearsay rule only in the case of declarations exculpatory of the accused, since the admission of hearsay evidence against an accused would rob him of 'the invaluable weapon of cross-examination which has always been one of the mainstays of fairness in our Courts' [Lucier SCR at 33; DLR at 244; CCC at 154]. Even if these conditions were adopted as criteria of admissibility of out-of-court confessions by an unavailable declarant, other requirements would have to be considered to safeguard against the risk of fabrication to which the Supreme Court of South Australia referred in In re Van Beelen [at 204-205].
The Supreme Court of Canada saw the whole theory of admissibility of out-of-court declarations against interest to be that the declarant knew the declaration to be against interest at the time when the declaration was made [Ward v H S Pitt & Co [1913] 2 KB 130 at 137-138, cited by Martland J in Demeter SCR at 545-546; DLR at 255-256; CCC at 141-142]. For that reason, a strict application of the Demeter principles 1 and 2 would restrict the Canadian exception to little more than confessions made to a police officer [See Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992) pp185-187]."
The Chief Justice went on to criticise the conditions of reliability, necessity and exculpatory effect governing admissions which had been developed in Canada in R v Khan [1992] 2 SCR 531; and followed in R v Smith [1992] 2 SCR 915; and R v Finta [1994] 1 SCR 701. His Honour said at 11 - 12:
"… the broad tests of necessity and reliability advanced in Khan and Smith are hard to reconcile with the view expressed by Barwick CJ in Vocisano, by Wilson, Dawson and Toohey JJ in Walton and by me in Pollitt [And see the restricted exception allowed by McHugh J in Pollitt (1992) 174 CLR 558 at 621-622], namely, that a judge's opinion of reliability does not make hearsay admissible. The Khan test of reliability is reduced to a matter of judicial opinion.
'Necessity' adds very little if it means only 'that hearsay is the only available means of putting that evidence before the court' [Finta (1992) 92 DLR (4th) 1 at 135; 73 CCC (3d) 65 at 199]. Under that test, although direct testimony could not be obtained from an incompetent witness, a witness entitled to claim privilege or a co-accused, an out-of-court declaration by such a witness would be received. I would not adopt the Khan approach. It runs counter to the law of this country which treats hearsay as inadmissible unless it falls within a defined exception.
If the exception of declarations against penal interest were to be accepted as part of our law, there may be a question whether the principles approved in Demeter are appropriate or whether some other (possibly less restrictive) principles should be adopted, bringing our law closer to the Canadian law. I do not suggest that that is the desirable development. Rather it seems to me that any revision of the approach hitherto taken in this country would require a general review of the hearsay rule, its history, purpose and operation. But that must be a question for another day."
McHugh J at 32 found it unnecessary to decide whether the hearsay rule was subject to a "flexible exception" as formulated by Mason CJ in Walton v The Queen, supra. After reviewing the decisions in Canada and the United States adopting the exception to the hearsay rule for statements made against penal interest at 35 - 36, McHugh J concluded at 37 that, if the statement was truly against penal interest and reliability and corroboration were required as in Canada and some United States jurisdictions, the evidence in Bannon would not be admissible. His Honour went on to consider the necessary and reliable exception at 39 - 41 and concluded that it was unnecessary to determine whether that exception should be adopted in Australia because it would not assist the appellant because he was unable to satisfy the reliability threshold.
An examination of the relevant authorities, including In re van Beelen (1974) 9 SASR 163 at 206 - 207 and 209 which, if followed, would exclude the evidence of at least some of the alleged confessions by Cooke in accordance with the law as it has been understood, until the possibility of recognition of a further exception or exceptions to the rule against hearsay in Bannon, leads me to the conclusion that it would be inappropriate for a single Judge of the Court of Criminal Appeal to attempt to determine the admissibility of the various confessional statements said to have been made by Cooke upon which the appellant seeks to rely. The matter was not fully argued before me. The issue is of such importance that it should be considered by the full Court of the Court of Criminal Appeal at the substantive hearing of this appeal.
I note that some consideration was given to In re van Beelen and Bannon by Owen J in The Queen v Golightly, unreported; SCt of WA; Library No 970040; 14 February 1997 at 20 and 23 - 29. In particular, Owen J noted at 26 - 27 that in Zullo v R [1993] 2 Qd R 572 the Court of Appeal in Queensland doubted the application of the rule in the Sussex Peerage Case, the High Court had declined to hold that the rule no longer applied in Australia. That is a question which may need to be considered in the present case, particularly in relation to any alleged confession made by Cooke regarding responsibility for the death of Ms Anderson at a time following his conviction and sentence to death for the murder of a Mr Sturkey.
Documents to be included in Appeal Books
At the directions hearing on 6 December 2000 counsel for the Crown submitted a List of Documents to be included in the appeal books for this appeal. I approve of the list on the basis that it will not be necessary to include in the appeal books in printed form the transcripts of the trial and the appeal insofar as they are available in electronic form. There should be added to the list, however, the grounds of the present appeal.
I have directed that these reasons be made available to the parties before formal publication for two reasons. The first is that the reasons have been completed during the Christmas Vacation and during a period in which I have been on leave. Because I will be attending a Conference in Tasmania in the week commencing 22 January 2001, it seemed to me undesirable that the parties should have to wait until my return to the Court on 29 January to receive the reasons.