Pollitt v The Queen

[1992] HCA 35

HIGH COURT OF AUSTRALIA

Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ

POLLITT v. THE QUEEN

(1992) 174 CLR 558

13 August 1992

Evidence—Criminal Law

Evidence—Criminal trial—Hearsay—Murder—Arrangement to murder—Witness deposing to telephone conversation between instigator and accused—Instigator identifying caller as accused—Admissibility—Whether "telephone" exception to rule against hearsay. Criminal Law—Evidence—Confession to prison informer—Warning to jury—Corroboration—Whether evidence attracting warning can corroborate or be corroborated by evidence also attracting warning.

Decisions

MASON C.J. Dawson and Gaudron JJ. have set out the facts, the issues and the relevant evidence in this case. I need not repeat them.

2. I agree with their Honours' reasons for concluding that the trial judge's directions with respect to Denning's evidence were adequate. However, I take a rather different view of the evidence of Mr and Mrs Berry. The trial judge allowed this evidence to be led by the Crown not to establish the truth of anything asserted but "as establishing Allen's state of mind at the time he made the
statements and (it) demonstrates that he was a party to the agreement to kill Williams, a fact which will be very much an issue in the trial".

3. The Court of Criminal Appeal concluded that the evidence was correctly admitted as tending to prove Allen's involvement with others in the killing of Simpson. The Court endorsed the trial judge's view that Allen's participation in a plan to kill Williams and the allegation that the wrong person was killed were "facts very much in issue" (1) Pollitt (1990) 51 A Crim R 227, at p 236..

4. The critical or essential issue at the applicant's trial was identity. Nevertheless, while the existence of the conspiracy was not in dispute, proof of it was part of the overall case for the prosecution. Accordingly, evidence that the killing was a contract killing, that Allen had entered into an agreement with the applicant to kill Williams and that the killer made a mistake as to the identity of the deceased was relevant. Such evidence would establish a motive for the murder and assist in establishing the identity of the killer. The applicant does not challenge the admission of the Berrys' evidence to the extent to which it relates Allen's remarks and demeanour during his telephone conversation with the caller. However, the applicant submits that, apart from the evidence of what Allen said on the phone and his demeanour when speaking, the other testimony given by the Berrys which recounted Allen's subsequent statement or statements that he had been speaking to the applicant who had made a mistake in doing a job for Allen and wanted nevertheless to be paid should not have been received. The applicant's submission is that the evidence, though relevant, was inadmissible because it infringed the hearsay rule.

5. The relevant testimony of the Berrys to which the applicant objects consists of out-of-court statements made by a person who was not called to give evidence. Whether such testimony falls within the hearsay rule depends upon whether the testimony was tendered for the purpose of "directly proving that the facts are as asserted in the statement" (2) Walton v. The Queen (1989) 166 CLR 283, at p 288. At trial and on appeal to the Court of Criminal Appeal, the Crown argued that it was not attempting to rely upon the evidence testimonially; the Crown's position has consistently been that the various statements by Allen are evidence of his state of mind and thus, by inference, evidence that there existed a plot to kill Williams to which Allen was a party. In his directions to the jury, the trial judge accepted this as the basis of the admissibility of the evidence. In relation to the evidence of Wayne Berry, the trial judge stated:

"I want to give you a warning about that part of Berry's evidence, that is, of the conversations he says he had with Allen after the shooting and his description of Allen's demeanour and behaviour after the shooting. Those statements made by Allen are not evidence of the facts asserted by Allen. The only basis upon which they are admissible is to establish Allen's state of mind at the time he made the statements and to demonstrate, if you accept the truth of them, that he was a party to the agreement to kill Williams. But they do not establish the facts asserted by Allen and cannot establish the facts asserted because they were said in the absence of the accused man. They can only be used by you as establishing Allen's state of mind when he said them and to demonstrate, if you accept them, that he, Allen, was party to the agreement to kill Williams. But they are not evidence against the accused man. Now is that clear?"

6. Similarly, in relation to the evidence of Sandra Berry, he stated:

"Now, this passage of her evidence falls into the same category as the passage of the evidence I reminded you of given by her husband. That is this passage of her evidence is no evidence at all against the accused man. This is what she says Allen told her and what she saw after the killing. The only basis upon which this evidence is admissible is to establish Allen's state of mind at the time and if you accept the truth of what she says, that he, Allen, was party to a plan to kill Williams. But it is no evidence against the accused man."

7. The Court of Criminal Appeal found no error in the approach of the trial judge on this issue. Crockett and O'Bryan JJ. concluded that the "evidence was correctly admitted as tending to prove Allen's involvement with others in the killing of Simpson" (3) (1990) 51 A Crim R, at p 236. Their Honours said (4) ibid., at p 237:

"The evidence of the Berrys was admissible on the basis that the utterances of Allen tended to establish a fact relevant to a fact in issue namely, that he knew of the murder and was a party to it with another person or persons."

8. It is well accepted that an out-of-court statement is admissible to prove the maker's state of mind, intention or knowledge and that the reception of the statement does not infringe the hearsay rule (5) Walton v. The Queen; Reg. v. Blastland (1986) AC 41; Subramaniam v. Public Prosecutor (1956) 1 WLR 965; Wildman v. The Queen (1984) 12 DLR (4th) 641. The Court of Criminal Appeal was right in regarding Walton v. The Queen as supporting such a proposition. But I do not see how Allen's state of mind was relevant to the issues which fell for determination by the jury. Allen's state of mind was something quite apart from the existence of an agreement between Allen and the killer for the killing of Williams and the botched execution of that agreement by the killer which, on the Crown case, gave rise to the telephone conversation between Allen and the killer. A statement made to a witness by a third party is only admissible in evidence to prove the maker's state of mind when the state of mind evidenced by the statement is "either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial" (6) Blastland (1986) AC, per Lord Bridge of Harwich at p 54.

9. Once it is accepted that Allen's state of mind was not relevant to the issues for determination, the actual decision in Walton has no bearing on the present case. In Walton, the Court considered the use to which evidence of a statement by the deceased could be put. All members of the Court agreed that evidence of a statement by the deceased was admissible for the purpose of proving the deceased's intention; a majority of the Court held further that evidence of the deceased's intention to do an act could be used to infer that the act was done. On the facts of that case, it was highly relevant whether the deceased had carried out her avowed intention to meet her husband on the relevant evening. In this case, however, there is no element of intention in the alleged statements by Allen and no basis for inferring from the fact that the statements were made by Allen that any particular event then occurred.

10. However, there are statements in Walton which support a less than rigid application of the hearsay rule. In that case, I said (7) (1989) 166 CLR, at p 293:

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

I went on to indicate that "especially in the field of implied assertions there will be occasions upon which circumstances will combine to render evidence sufficiently reliable for it to be placed before the jury".

11. Deane J., writing with reference to evidence by a third person who heard one side of a telephone conversation, remarked (8) ibid., at p 308:

"If the hearsay rule were to be inflexibly applied, it would preclude the identity of the other party to the conversation being established by contemporaneous statements of the (participant) even though made in the course of the actual conversation. The hearsay rule should not, however, be inflexibly applied but should be qualified where the circumstances are such that its inflexible application would confound justice or common sense or produce the consequence that the law was unattuned to the circumstances of the society which it exists to serve. There is plainly something to be said for the view that, at least in some circumstances, the hearsay rule should be qualified so as not to preclude the receipt of evidence of contemporaneous statements made by one party to a telephone conversation (either in the course of the actual conversation or immediately before or after it) which disclose that the other party to the conversation was the person against whom it is sought to lead otherwise relevant and admissible evidence of that part of the conversation which was overheard."

12. The case for relaxing the hearsay rule should in my view prevail so as to permit, at least, the reception in evidence of statements during the course of a telephone conversation made by a party to that conversation when they form part of that conversation and identify the other party to the conversation. Such statements will be in the nature of implied assertions and it is in the field of implied assertions which naturally form an integral part of a conversation that there is a very strong case for relaxing the hearsay rule. An implied assertion of this kind is spontaneous and likely to have a high degree of reliability.

13. True it is that evidence of this kind is not the best evidence of the identity of the other party to the conversation and that it is evidence of identity, the truthfulness and accuracy of which cannot be tested in cross-examination in the way in which it would be tested if the party to the conversation gave the evidence. These shortcomings are generally expressed to be the reasons for the adoption and maintenance of the hearsay rule (9) See Lejzor Teper v. The Queen (1952) AC 480, per Lord Normand at p 486, where his Lordship described the rule as "fundamental". But it does not seem to me that these considerations, powerful though they may be, should prevail against the reception in evidence of an implied assertion when that implied assertion is clearly spontaneous and "has a high degree of reliability and can be acted upon safely", to repeat the words of Gaudron and McHugh JJ. in Reg. v. Benz (10) (1989) 168 CLR 110, at p 143. Indeed, to insist on an application of the hearsay rule when the witness who participated in the conversation is dead is to deprive the court of evidence which may be relevant, reliable and valuable. In most cases, telephone conversations take place in circumstances in which a reference, in the presence of a witness, by one party in the course of the conversation to the identity of the other party, will be spontaneous and may be expected to have a high degree of reliability.

14. Once it is accepted that evidence by the witness of that reference is admissible, it seems to me that a statement or reference by the first party to the identity of the other party made immediately after the termination of the telephone call is also admissible. True it is that the statement or reference may then cease to have the character of an implied assertion and assume the character of narration but, as a matter of ordinary experience, there is no persuasive reason for drawing a distinction, in terms of admissibility, between such a statement and one made during the course, and as part, of the telephone conversation itself. So long as it is made immediately after the telephone conversation concludes it is likely to have a high degree of spontaneity, to be free from the possibility of concoction and thus to have a high degree of reliability. It is instructive to recall the observations of Lord Wilberforce, speaking in a different context - the res gestae exception to the hearsay rule - when delivering the advice of the Judicial Committee in Ratten v. The Queen (11) (1972) AC 378, at p 389:

"As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it."

15. On the other hand, I take the view that the evidence given by the Berrys of Allen's statement, after the telephone conversation had concluded, that the applicant had made a mistake in doing a job for Allen and wanted to be paid should not have been received. That evidence was purely narrative and did not fall within the category of implied assertions.

16. The application of the approach which I have just stated presents a problem in the present case by reason of the difference in the testimony given by Mr and Mrs Berry with respect to the time when Allen made his statement identifying the applicant as the other party to the telephone conversation. According to the evidence of Mrs Berry, the statement by Allen that he had been speaking to "Ray" was made "when he got off the phone". On the other hand, Mr Berry was unable to recall observing Allen on the telephone on that occasion. Mr Berry's evidence on this point is not necessarily inconsistent with that of his wife because he may not have been in the room when the telephone conversation took place. However, Mr Berry did give evidence that several days later Allen said: "Ray got the wrong one and wants to be paid for it." Mrs Berry did not give evidence of such a statement having been made, apart from that made immediately after the telephone call. It is possible that Mr and Mrs Berry were deposing to the one statement, not two separate statements, and that they gave conflicting versions of when that statement was made. But the better view of the evidence is that the statements deposed to by Mr and Mrs Berry were separate statements made on two different occasions.

17. If conflicting versions were given of one statement, they would have given rise to an issue of fact for determination by the jury. If Mrs Berry's testimony were to be accepted, then the jury were entitled to receive her evidence of Allen's statement as evidence that the applicant was the other party to the telephone conversation and, thus, as evidence of his being a party to the agreement with Allen alleged by the Crown. If, however, the jury were to accept Mr Berry's evidence, they would not be entitled to act upon the statement. On this hypothesis, the trial judge should have directed the jury accordingly but did not do so. However, as in my view there was no necessary inconsistency between the accounts given by Mr and Mrs Berry, this hypothesis may be discarded.

18. If, on the other hand, the Berrys gave evidence of statements made on distinct occasions, Mrs Berry's statement was admissible and Mr Berry's was not because it was not related in any way to the telephone conversation and infringed the hearsay rule. Consequently, Mr Berry's evidence of the statement should not have been placed before the jury. The reception of the statement in evidence gives rise to a problem in that the jury may have regarded it as confirming the evidence given by Mrs Berry. It was, of course, evidence which the applicant could not rebut or qualify otherwise than by reliance on his general defence that he was not the killer.

19. The question then is whether the trial judge's directions were sufficient to prevent any miscarriage of justice. He gave clear and positive directions that the evidence of both Mr and Mrs Berry could not be used against the applicant and that it could only be used to establish Allen's state of mind and that he was a party to an agreement to kill Williams. Having regard to the strength and clarity of the directions in relation to use of the evidence against the applicant, I do not consider that there was a miscarriage of justice arising from the reception of Mr Berry's evidence.

20. Unfortunately, the trial judge's directions to the jury were deficient on two counts. First, he failed to instruct the jury as to the use they could make of Allen's statement in the presence of Mrs Berry, if they accepted her evidence, for the purpose of identifying the applicant as the other party to the telephone conversation. Secondly, the judge erroneously informed the jury that they could use the Berrys' testimony as evidence of Allen's intention.

21. The first error entailed no disadvantage or prejudice to the applicant. On the other hand, the erroneous direction that the Berrys' testimony could be used as evidence of Allen's intention cannot be disposed of quite so easily. That is because it is difficult to know what the jury would have made of the direction when Allen's intention was not a relevant fact, nor was it relevant to a fact in issue. As the trial judge related the matter of Allen's intention to his being a party to an agreement to kill Williams, a fact which was an element in the Crown case, it seems clear that, in conformity with the instruction, the jury would have regarded the evidence as going to that issue and not treated it as evidence against the applicant. I acknowledge that the Berrys' evidence of Allen's statement that the applicant had made a mistake in doing a job for Allen and that he wanted to be paid was inadmissible and was very prejudicial to the applicant but, in the circumstances, as I have outlined them, I do not consider that the jury would have used that evidence for an improper purpose. There was, in any event, strong evidence identifying the applicant with the mistaken killing of Simpson, that evidence being independent of the Berrys' testimony. And there was evidence from the witness Jones that the applicant said that he was doing the killing for Allen and later that he had shot the wrong person, as well as other evidence linking Allen and the applicant in a discussion about disposing of Williams, the intended victim. In the result, it does not seem to me that there was any significant possibility that the jury would have used the evidence for an impermissible purpose when they were clearly and positively instructed not to do so.

22. I would grant special leave to appeal and dismiss the appeal.

BRENNAN J. The prosecution's case against Roy Anthony Pollitt, the appellant, was that he had shot and killed Lindsay Simpson by mistake, in intended performance of a contract he had made with one Dennis Allen that he, Pollitt, would murder Alan David Williams. There was no doubt about the fact that Simpson had been murdered. He had been shot by an assassin. On the appellant's trial before the Supreme Court of Victoria on a count of murder of Simpson, the issue was: was Pollitt the murderer? Proof that Pollitt had made a contract with Allen for the murder of Williams would tend to establish that Pollitt had both a motive to commit murder and an intention to do so, and evidence that Pollitt had a motive to murder Williams, coupled with evidence that the murderer had mistaken Simpson for Williams, was admissible as circumstantial evidence tending to prove that Pollitt was the murderer of Simpson (12) Plomp v. The Queen (1963) 110 CLR 234, at pp 247-250. The evidence tendered to prove that Pollitt had made a contract with Allen for the murder of Williams had to be admissible, of course, against Pollitt. The chief evidence of a contract between Pollitt and Allen was given by an accomplice, Jones, whose evidence if accepted established that Pollitt had agreed with Allen to murder Williams, that Pollitt expected a large sum of money in payment, that Pollitt obtained a gun and instructions during a visit to Allen's premises, that Pollitt was aware on the morning after the shooting that he had shot the wrong man and that Pollitt then rang Allen.

2. Allen died before the trial commenced. The prosecution, to assist in proving the alleged contract, tendered evidence given by Mr and Mrs Berry of conversations one or other of them had had with Allen on the days following Simpson's murder. Mrs Berry gave evidence that, on the night of Simpson's murder, Allen had told the Berrys to watch the news. She did so and, when she saw Allen next day, he mentioned the "mistaken identity" item. She said that Allen was furious. She said that, at about 11 o'clock in the morning of that day, the phone rang and Allen answered it. Mrs Berry's evidence continued:

"Tell us what you can remember?--- He said, 'You get the rest of the money when you do the job properly.'"

After the phone all, which lasted "maybe a couple of minutes", Allen was furious, "ranting and raving", and said to Mrs Berry:

"I have already given him 5,000, he expects me to give him another five for something he hasn't done."

Later she gave this evidence:

"... going back to that telephone call, the telephone call where you say Dennis Allen became angry, now when he got off the phone, did he say who he had been speaking to?---Yes. Who did he say it was?--- He said it was Ray ... (t)hat he had been speaking to."

Mr Berry gave evidence that, on the day following Simpson's murder, Allen was "jumpy and in a bad mood" and, when Allen was asked what was wrong, "he said that someone buggered up something they were supposed to do". Some days later, Berry was present at a conversation where Allen said that "someone wanted $5,000 and didn't do the job right". Later, according to Berry, Allen -

"said Roy got the wrong one and he wants to be paid for it ... ---He wants his money, the rest of his money."

Mr Berry's evidence continued:

"Did he say anything in that conversation about his attitude to the request that he be paid the extra money?---Yes, he said he wouldn't get it. Did he say why?---He buggered up the job."

These pieces of evidence were admitted over a defence objection that the evidence was hearsay and in acceptance of a prosecution submission that Mrs Berry's evidence established "Allen's state of mind at the time he made the statements (to the Berrys) and demonstrates that he was a party to the agreement to kill Williams, a fact which will be very much an issue in the trial". The learned trial judge thought that Mrs Berry's evidence was admissible "to demonstrate the relationship which existed between the accused and Allen at the time these events took place". Mr Berry's evidence was admitted "as demonstrating Allen's then state of mind and that he was party to the agreement to kill Williams". Relevance, hearsay and original evidence

3. The first condition of admissibility of evidence is relevance: apart from questions relating to the credit of a witness, a fact which evidence is tendered to prove (a "fact to be proved") must be a fact in issue or a fact relevant to a fact in issue. Where a fact to be proved is a fact in issue, admissibility of evidence tendered to prove it depends solely on the manner in which that evidence tends to establish the fact to be proved. Where a fact to be proved is a fact relevant to a fact in issue, admissibility depends first on the manner in which that evidence tends to establish the fact to be proved and, secondly, on the relevance of the fact to be proved to a fact in issue. I respectfully agree with Lord Oliver of Aylmerton (13) In Reg. v. Kearley (1992) 2 WLR 656, at p 684 that "relevant" cannot be better defined than by the definition in Art.1 of Stephen's Digest of the Law of Evidence (14) 12th ed. (1936), p 4-

"any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other."

Evidence of an out-of-court statement may tend to establish a fact to be proved either because that fact is asserted by the maker of the statement and the maker of the statement is to be believed to have made the statement truthfully - in which case the evidence is hearsay - or because the making of the statement is itself the fact to be proved or, when taken together with other facts established by evidence or common experience, tends to establish the fact to be proved - in which case the evidence is original evidence. The cogency of hearsay evidence depends on the credit to be attributed to the person making the statement in the circumstances in which it was made and on the credit of the witness who relates it in court. The cogency of original evidence depends solely on the credit of the witness who relates it in court. The distinction between hearsay and original evidence was stated by Lord Wilberforce in Ratten v. The Queen (15) (1972) AC 378, at p 387 in these terms:

"The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on 'testimonially,' i.e., as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their Lordships will restate what was said in the judgment of the Board in Subramaniam v. Public Prosecutor (16) (1956) 1 WLR 965, at p 970: 'Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.'"

4. The classification of evidence according to this distinction, though clear enough in principle, is frequently obscure in practice. Yet the classification of an out-of-court statement either as hearsay or as original evidence is necessary to determine whether the general rule against the admission of hearsay evidence (17) Myers v. Director of Public Prosecutions (1965) AC 1001, at p 1020 (or some specific exception to that rule) applies or whether the general rule in favour of the admission of original evidence (or some exception to that rule) applies. To make the required distinction, it is necessary to ascertain the manner by which the evidence tends to prove the fact to be proved. The distinction may be extremely fine between a case where the existence of a fact to be proved is to be implied in (though not expressly asserted by) what the maker of the statement said and a case where the existence of a fact to be proved is to be inferred from the fact that the statement was made in the circumstances in which it was made. A distinction so fine that it turns on the difference between an implication from what the maker of a statement has said and an inference of fact drawn from the making of a statement in the surrounding circumstances is likely to produce uncertainty in classification. The distinction calls for a precise identification of the probative relationship between the statement and the fact to be proved, that is, the manner in which the tribunal of fact is invited to reason from the statement to the fact to be proved.

5. As a fact to be proved may be either a fact in issue or a fact relevant to a fact in issue, and as the evidence tendered to prove a fact to be proved may be either original evidence or hearsay evidence, there are four categories of evidence for consideration: original evidence of a fact in issue, original evidence of a fact relevant to a fact in issue, hearsay evidence of a fact in issue and hearsay evidence of a fact relevant to a fact in issue. Unless there is some ground for excluding original evidence in a particular case (e.g., undue prejudice to an accused), original evidence is admissible; unless hearsay evidence falls into an exception (e.g., as part of the res gestae), it is excluded. The reasons why the law chose to exclude hearsay evidence are uncertain (18) ibid., at pp 1020-1021, but at the heart of the objection to hearsay is its dependence on the credibility of a statement that is "uttered not under cross-examination" (19) Wigmore's phrase: Wigmore on Evidence, vol.6 (Chadbourn rev. 1976), par.1788. As the Privy Council pointed out in Lejzor Teper v. The Queen (20) (1952) AC 480, at p 486:

"The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost."

The justification, if justification be needed, of the rule against the admission of hearsay is that a party - especially an accused in a criminal case - is not to be faced with evidence of an assertion made in circumstances in which the credibility of the assertion cannot be adequately tested. Whatever its origin and whatever its justification, the rule against hearsay is "fundamental" (21) ibid., though it is qualified by numerous exceptions.

6. It would be possible, no doubt, to redesign the law of evidence with the assistance of psychologists and philosophers versed in epistemology but it cannot be done piecemeal or by extensions which are not linked to an underlying principle. To attempt such alterations, however pragmatically desirable in one case, will throw the next case into confusion. The law of evidence, though adjectival, is the working tool which a trial judge must keep constantly at hand and the principles of the law of evidence are, so to speak, the ground on which the dynamics of a trial, especially a criminal trial, are played out. There is an attraction in the notion that the admissibility of hearsay should be governed by a judicial assessment of its reliability, but there are countervailing arguments. Thayer (22) A Preliminary Treatise on Evidence at the Common Law, (1898), p 523 pointed to some of the unsatisfactory implications of that approach:

"No doubt, in point of reason, hearsay statements often derive much credit from the circumstances under which they are made; ... and it would in reason have been quite possible to shape our law in the form that hearsay was admissible, as secondary evidence, whenever the circumstances of the case alone were enough to entitle it to credit, irrespective of any credit reposed in the speaker. This point of view is forever suggesting itself in that part of the subject relating to declarations which are a part of some admissible fact, - of the res gesta, as the phrase is. These are often spoken of as parts of a mass of circumstantial facts described as res gestae, all evidential, supporting and supported by each other in their tendency to prove some principal fact; instead of being regarded, as they should be, as parts of that fact itself, pars rei gestae, lying under the curse of hearsay, but received, by way of exception, on account of this special intimacy of connection with the admissible fact. This part of the subject presents an instructive spectacle of confusion, resulting from the desire, on the one hand, to hold to the just historical theory of our cases; and, on the other, to resort to first principles, without being aware of the size and complexity of the task which is thus unconsciously entered upon."

Accepting, for want of a practical alternative, the general principle that hearsay evidence is inadmissible, mention should be made of the two categories of original evidence identified above.

7. The clearest instance of an out-of-court statement which is admissible as original evidence is a case where the making of the statement is itself a fact in issue. There is no need to examine either the probative relationship between the evidence tendered to prove the making of the statement and the fact to be proved (because the making of the statement is itself the fact to be proved) or the relevance of the fact to be proved to the fact in issue (because it is itself the fact in issue). Evidence of the making of the statement is not tendered to prove the truth of the facts asserted by the maker. For example, evidence of the uttering of seditious words by an accused charged with sedition must be admitted in proof of an element of the offence and evidence of the making of defamatory statements alleged to have been made by a defendant in a defamation action must be admitted in proof of the publication of defamatory matter.

8. The second category consists in the cases where the making of the statement is a ground for inferring the fact to be proved. For example, in Subramaniam where a person, accused in Malaya of unlawfully being in possession of ammunition, pleaded duress as an excuse, evidence of threats allegedly made to the accused by terrorists was held admissible to found an inference as to the accused's state of mind. The inference was to be drawn from the uttering of the threats and the circumstances in which they were uttered. Again, admission of evidence of this class does not offend the rule against hearsay, for the evidence is not tendered to prove a fact asserted by the maker of the statement. It is admissible on the footing that the fact that the particular statement was made, coupled with any relevant circumstances and considered in the light of common experience, warrants an inference that the fact to be proved exists.

9. In considering evidence of this class, the relevance of the making of the statement to the fact to be proved and the relevance of the fact to be proved to the fact in issue are of critical importance. Although relevance for the purpose of determining admissibility falls for decision by the trial judge, it is ascertained according to common experience (23) Martin v. Osborne (1936) 55 CLR 367, per Dixon J. at p 375. Judicial minds have sometimes differed as to the capacity of evidence of the making of a statement to found an inference of a particular fact and have sometimes differed as to the relevance of the fact to be proved to a fact in issue. Statements made by intending customers of a person charged with the carrying on of an unlawful activity provide a good example. In Australia and New Zealand, on a charge of keeping a common gaming house, evidence that a number of people attend or telephone the premises seeking to place bets has been held to be admissible to prove that a betting business is carried on on the premises (24) Davidson v. Quirke (1923) NZLR 552; Lenthall v. Mitchell (1933) SASR 231; McGregor v. Stokes (1952) VLR 347; Marshall v. Watt, Struthers, and County (1953) Tas SR 1; Gorman v. Newton; Ex parte Newton (1958) Qd R 169; Police v. Machirus (1977) 1 NZLR 288. In Reg. v. Firman (25)(1989) 52 SASR 391. See also Morgan v. State of Texas (1980) Tex Civ App 596 SW 2d 220, a Full Court of the Supreme Court of South Australia held that evidence that a number of people telephoned premises seeking to buy drugs from a named person who occupied those premises was admissible on a charge against that person of possessing heroin for sale. The Court regarded the making of the phone calls as relevant to the existence and nature of the business or activity carried on on the premises and the identity of the person carrying it on (26) (1989) 52 SASR , at pp 394, 395, 397-398. Although the callers in these cases might be thought to have known that a person at the premises was taking bets or selling heroin, as the case may be, evidence of what the callers said was not treated as implying an assertion of that fact. Had evidence of the callers' statements been understood merely as assertions of facts known to the callers, the evidence would have been classified as hearsay and held to be inadmissible in accordance with the observation of Dixon J. in Martin v. Osborne (27) (1936) 55 CLR, at pp 375-376:

"The application of ... any ... general statement about relevancy is subject to the well-known specific rules of exclusion. For instance, the rule against hearsay and the warning implied in the descriptive phrase res inter alios acta lead to the exclusion of evidence not only of what a stranger to the cause has said but also of what he has done, if it is offered to prove his knowledge of some fact and thus the existence of that fact, notwithstanding that the fact itself be relevant and its proof by another medium be receivable." (Emphasis added.)

In the cases mentioned, the evidence of the call was not treated as proof of the knowledge of the callers that bets were taken or heroin was sold at the premises, but as original evidence from which, in totality, the existence of a business of taking bets or selling heroin, as the case may be, could be inferred. The existence of a business was either a fact in issue or was relevant to a fact in issue.

10. A contrary view of the evidence of calls was formed by a majority of the House of Lords in Reg. v. Kearley. In that case, callers had offered to buy drugs from the appellant, identifying him by his nickname "Chippie". The calls were made in a period of several hours after the police had conducted a search for drugs in the appellant's house. The reasoning of the majority (Lord Bridge, Lord Ackner and Lord Oliver) contained the following steps: (1) the mere act of calling was meaningless and irrelevant apart from the significance attaching to the words used by the caller; (2) the words used by a caller contained or might be thought to have contained an implied assertion that the appellant was a supplier of drugs; (3) implied assertions in out-of-court statements offend the rule against hearsay; (4) though the words used by a caller showed the caller's state of mind, that state of mind was irrelevant to any fact in issue; (5) the inadmissibility of evidence of a single call is unaffected by proof that there were multiple calls to the same effect. Lord Griffiths, in dissent, regarded proof that the customers believed that they could obtain drugs from the appellant as founding an inference "that the appellant had established a market as a drug dealer by supplying or offering to supply drugs and was thus attracting customers" (28) (1992) 2 WLR, at p 660. The fact that there were other possible explanations meant that it was for the jury to decide which inference they chose to draw. Lord Browne-Wilkinson, also in dissent, regarded evidence of the calls as tending to prove that there was a market for drugs that the appellant might satisfy and that that fact was relevant to the occupant's purpose in having possession of the drugs (29) ibid., at pp 698-700. The points of departure between the majority in Kearley and the minority in that case and between that majority and the Australian and New Zealand cases earlier cited are to be found in the differing opinions as to the relevance of the fact that callers had sought to buy drugs or place bets to the question of the nature of the activity being carried on by the person charged - unless the statements were treated as hearsay assertions by the callers of the nature of that activity and, on that account, inadmissible. Although the question of admissibility in each case was a question of law, the answer to the question turned on the court's appreciation of the probative effect of the making of the calls, not of the truth of their content. Subject to one reservation, there was no divergence of opinion as to the inadmissibility of the contents of those statements to prove the truth of what the callers had impliedly asserted. The reservation relates to the belief of a caller that a particular activity was being carried on and the use of that belief - as distinct from the making of the statement which conveyed the belief - to found the relevant inference.

11. If it were permissible to infer the truth of a statement from the fact of the maker's belief in what he stated, the making of the statement could be used as evidence of the belief, and from that belief the truth of what was stated could be inferred. But, as Dixon J. said in Martin v. Osborne (30) (1936) 55 CLR, at pp 375-376, it is not permissible to use knowledge of a fact to prove the truth of what is known: to use the making of the statement in that way is to use evidence of knowledge as hearsay proof of what is known.

12. It follows that in those cases where evidence of an out-of-court statement can be used to prove the truth of what is stated - for example, evidence admitted as part of the res gestae - the evidence is not admitted as original evidence but under an exception to the hearsay rule. Subject to those exceptions, evidence of an out-of-court statement tendered to prove the truth of some fact asserted by the maker of the statement, expressly or impliedly, is prima facie inadmissible. But where the making of a statement in particular terms is capable, in conjunction with evidence of other facts and considered in the light of common experience, of founding an inference that a relevant fact exists, evidence of the making of the statement is admissible as original evidence of the relevant fact.
Exceptions to the hearsay rule

13. The most obvious exception to the hearsay rule is an admission by a party against the party's interests (in criminal cases, a confession by the person charged). That exception has no relevance to this case. Another possible exception to the hearsay rule - it is often stated as an exception, though it may be no more than an inference from the words uttered - is the proposition that an out-of-court statement is admissible to prove the contemporaneous state of mind of the maker of the statement. Such evidence is admissible, but only when that state of mind is itself a fact in issue or a fact relevant to a fact in issue (31) Walton v. The Queen (1989) 166 CLR283, at pp 288, 302, 307. Thus, in Reg. v. Blastland (32) (1986) AC 41; cf. Reg. v. Szach (1980) 23 SASR 504, a person other than the accused was heard to make a statement indicating his knowledge at that time of the murder with which the accused was charged. The accused sought to tender evidence of a witness who heard the statement to prove that the maker of the statement, to have known of the murder at that time, must have been implicated in the murder. In the absence of evidence showing how that person came by knowledge of the murder, the fact of his knowledge was irrelevant to the issues. The statement was held inadmissible. If that person's statement had been treated as implying an admission by him of implication in murder, it would have been classified as hearsay and evidence of the statement would have been rejected on that ground.

14. However, where a statement is tendered to prove the maker's knowledge of a fact and that knowledge is used to found an inference of fact other than the truth of the fact known, the statement is not classified as hearsay but as original evidence. Dixon J's restriction on the use of an out-of-court statement revealing the maker's knowledge of a fact has no application except where the statement is tendered to prove the fact known. The distinction between use of a statement revealing the maker's knowledge of a fact in order to found an inference that the fact known is true (a testimonial use of the statement) and use of such a statement in order to found an inference that some other fact exists (a circumstantial use) is discussed by Wigmore (33) op.cit., par.1790. And the joint judgment of Wilson, Dawson and Toohey JJ. in Walton v. The Queen (34) (1989) 166 CLR, at pp 302-303, though recognizing the inadmissibility of evidence of a statement of knowledge which is tendered solely to prove the truth of the fact known, foresaw that a statement revealing knowledge of the maker of the statement might be used circumstantially and admitted in evidence for that purpose. Their Honours said:

"It may be true in some cases to say that statements made by a person indicating his state of mind involve no element of hearsay. ... But in other cases a person's statements about his state of mind will only have probative value if they are truthful and accurate and to rely upon them is to rely to some extent upon the truth of any assertion or implied assertion contained in them. To that extent an element of hearsay may be said to be present. ... But the element of hearsay need not necessarily preclude evidence of that kind being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted. The distinction between the two approaches is one which can be fine, but it is one which in principle ought to be drawn."

The distinction depends, as I have said, on the identification of the probative relationship between the particular statement and the fact to be proved. The distinction depends on the difference between proof by reliance on the truth of an assertion, whether express or implied, and proof by inference from all material facts which include the making of the statement.

15. In Reg. v. Benz (35) (1989) 168 CLR 110, at pp 134, 135 Dawson J. held evidence of a statement that contained an assertion of fact to be admissible as original evidence tending to prove the fact when considered in conjunction with the circumstances in which the statement was made. The charge was murder. A man had been stabbed and his body, not then dead, had recently been pushed over the side of a bridge by two women in the early hours of a morning when a witness came upon the scene and asked if everything was alright. One of the women replied that it was O.K., "her mother was just feeling sick". The wife of the deceased man and her daughter were charged with his murder and the question was whether the statement of the woman on the bridge was admissible in proof of the identity of the accused as the murderers. Dawson J. held the statement to be original evidence of the fact that "the younger woman was acting in accordance with the relationship known to exist between the respondents" (36) ibid., at p 134 and, together with other evidence, founded an inference that the two women on the bridge were the accused. The hearsay rule, in his Honour's opinion, had no application.

16. A further exception to the hearsay rule admits evidence of certain statements made in the course of, or approximately contemporaneously with, a transaction that is the subject of the court's inquiry: the res gestae exception. The res gestae exception has been considered in this Court in a number of cases in which the conditions of admissibility have been examined. In Brown v. The King (37) (1913) 17 CLR 570, at p 597, where the question was the admissibility of a statement made by a witness to a mortally injured victim of a shooting as the victim was leaving the scene, Isaacs and Powers JJ. said this:

"The incident offered in evidence was unconnected in causality with the shooting: if it had been so connected - as by flight to escape its continuance - the slight lapse of time and the mere fact of 25 yards distance would not have been sufficient in themselves to have destroyed the natural nexus. But when there is no natural connection by continuance - which may have liberal connotation - and there is a distinct and appreciable break of time and place, it would in our opinion be going beyond the limit of authority to admit evidence, which is in substance and reality a mere narration respecting a concluded event, a narration not naturally or spontaneously emanating from or growing out of the main transaction, but arising as an independent and additional transaction."

Their Honours' insistence on a natural connection between the statement and the event was followed by Dixon J. in Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle (38) (1940) 64 CLR 514, at p 533. His Honour noted the view then current among English lawyers that res gestae evidence was receivable only as original evidence and, on that account, was admissible "only as one of the parts or details of a transaction not complete when the statements were uttered and as supplying no proof of antecedent facts" (39) ibid., at p 531. The American view, on the other hand, treated the evidence as an exception to the hearsay rule "on the ground that a guarantee of their truth is to be found in their spontaneity, in the lack of 'time to devise or contrive' and in the instinctive character of utterances made under the influence of excitement" (40) ibid. The American view has now prevailed. In Ratten, Lord Wilberforce recognized the admissibility of hearsay in statements admitted under the res gestae exception when he rejected as a test of admissibility "the uncertain one whether the making of the statement was in some sense part of the event or transaction" (41) (1972) AC, at p 389. After review of authorities (including the Australian cases), his Lordship said (42) ibid., at p 391:

" These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused."

Where the statement was made after the event (presumably his Lordship meant at a time approximately but not exactly contemporaneous with the event) (43) ibid., at p 389 -

"it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded."

In Vocisano v. Vocisano (44)(1974) 130 CLR 267, at p 273 Barwick C.J., speaking with the concurrence of the other members of the Court, reserved final consideration of the effect to be given to Ratten. His Honour added:

"A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable: but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility."

17. Once it is accepted that the res gestae principle represents an exception to the hearsay rule and admits statements which may be used to prove the truth of the facts asserted therein, it is understandable that admissibility should be made to depend, inter alia, on the judge's satisfaction that the conditions in which the statement was made were such as "to exclude possibility of concoction or distortion". But, as Barwick C.J. pointed out, non constat that any hearsay statement is admissible if the judge is so satisfied. The statement must be made in conditions "of approximate (if) not exact contemporaneity" and the impossibility of concoction or distortion must arise from the "spontaneity or involvement in the event" by the maker of the statement. In Walton (45) (1989) 166 CLR, at p 304 these propositions were stated in the joint judgment in these terms:

" An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten (46) (1972) AC, at pp 389-390; Reg. v. Andrews (47) (1987) AC281, at pp 300-301; see also Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle (48) (1940) 64 CLR, at p 531. Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v. Vocisano (49) (1974) 130 CLR, at p 273."

In Walton evidence that, in answer to a telephone call, a child had said "Hello, daddy" was held inadmissible to prove the identity of the caller (50) (1989) 166 CLR, at pp 306, 309. The statement was probative of the caller's identity only if credit were given to the child's implied assertion that the caller was, in fact, "daddy". The Chief Justice's dissenting view that the statement was admissible though it contained hearsay was based on his Honour's appreciation of "the extreme unlikelihood of concoction on the part of the child" (51) ibid., at p 293. His Honour's approach was not expressed to be limited by the condition of approximate if not exact contemporaneity with the res gestae, but emphasis was placed on spontaneity as a guarantee of non-concoction. In my respectful opinion, it is not desirable to subsume the res gestae principle under a general principle which would admit hearsay evidence when a trial judge believes that concoction was extremely unlikely because the hearsay statement was uttered with apparent spontaneity. The conditions stated in Ratten and in the joint judgment in Walton and substantially confirmed in Vocisano should continue to govern the admissibility of hearsay evidence under the res gestae exception. Deane J. in Walton also favoured a relaxation of the common law rule "where the circumstances are such that its inflexible application would confound justice or common sense or produce the consequence that the law was unattuned to the circumstances of the society which it exists to serve" (52) ibid., at p 308. His Honour thought but did not decide that, at least in some circumstances, statements made in the course of a telephone conversation by one party might be admissible to establish the identity of the other. The introduction of a telephone call exception to the hearsay rule has not been pursued thus far. For the purposes of this case, it is sufficient to observe that Walton stands as a recent decision of this Court affirming, at least by a majority, the conditions of admissibility of res gestae evidence stated by Lord Wilberforce in Ratten, namely, approximate if not exact contemporaneity with the res gestae and an assurance of non-concoction arising from the spontaneity of the statement or the involvement of the maker in the events of the res gestae.

18. In Benz a majority of the Court regarded the statement of the woman on the bridge as admissible to prove the fact asserted by her, namely, that the other woman was her mother. Mason C.J. (53) (1989) 168 CLR, at pp 117-118 held the statement to be admissible on the footing of res gestae. His Honour also expressed the view (54) ibid., at p 117 that there was a "strong foundation" for receiving utterances of belief in a close familial relationship as evidence of that relationship. Deane J. (55) ibid., at pp 127-128 declined to grant special leave to appeal to determine the res gestae question and Dawson J. (56) ibid., at p 135, though finding that the statement would have qualified under the res gestae principle if it had been hearsay, held the statement to be admissible as original evidence. Gaudron and McHugh JJ. held (57) ibid., at p 144 that the statement could have been used by the jury to find the truth of that assertion once they were satisfied that the two women on the bridge were the murderers engaged in disposing of the body when the witness saw them. Subject to that finding, the statement was admissible as part of the res gestae. The decision in Benz thus leaves in place, if it does no more, the decision in Walton as to the conditions of admissibility of hearsay evidence under the res gestae principle.
The present case

19. The principles above discussed govern the resolution of the present case. These principles must be applied to three distinct pieces of evidence: the telephone conversation by Allen on the morning after the murder overheard by Mrs Berry; Allen's statement to Mrs Berry after the telephone conversation, including his assertion that he had been talking to Ray; and Allen's statements to Mr Berry during the days following the murder. None of these statements was made at a time substantially contemporaneous with the shooting of Simpson. None of them was made spontaneously. The res gestae here was the shooting of Simpson (58) Like the shooting in Brown v. The King, not the making, non-performance and subsistence of an assassination contract. The contract was relevant to prove the guilt of the party to the contract who had agreed to perform the assassination, but the dealings between the contracting parties were not part of the res gestae. None of the statements now in question qualifies as part of the res gestae. The proposition applicable to each piece of evidence is simply: was it admissible as original evidence of a fact relevant to a fact in issue? If yes, evidence of the statement was admissible; if no, that evidence was inadmissible. To apply any other or wider test would be to import a rule which has not hitherto been accepted as part of the law of evidence. It is necessary to consider each of the three categories of evidence separately.

20. The words spoken by Allen in the telephone call on the morning after the murder might be seen, in the circumstances, as a statement by Allen implying that the other party to the conversation had made a contract with him, that the other party had failed to perform the contract properly and that final payment had been deferred until the contract was fully performed. If that were the only way in which evidence of the conversation could be used, it would have been inadmissible as hearsay. There is no evidence that Pollitt, if he were the caller, admitted the truth of the grounds of Allen's remonstrance. But Allen's statement to the telephone caller that the caller would "get the rest of the money when you do the job properly" was itself a promise by Allen to pay the caller. From the making of that promise and from the fact that Allen had remonstrated with the caller, an inference could be drawn that the caller had undertaken to perform some service for Allen and had not then performed it. The evidence was therefore admissible as original evidence if the fact that the caller had undertaken to perform some service for Allen and had not then performed it (the fact to be proved) was relevant to a fact in issue. When the fact of the telephone call containing a remonstrance and a promise is coupled with the evidence of Jones that Pollitt rang Allen that morning after he, Pollitt, found out that he had shot the wrong victim, there is a foundation for an inference that the conversation overheard by Mrs Berry was a conversation with Pollitt. If that inference were drawn, Allen's remonstrating with Pollitt about his mistaken attempt to perform the contract and Allen's promise to pay on proper performance were relevant to found a further inference that a contract for the murder of Williams existed and had not been performed, though the conversation could not be used (for want of any admission on Pollitt's part) to prove the shooting of Simpson by mistake for Williams. Evidence of the telephone conversation was therefore admissible as original evidence tending, in conjunction with other evidence, to prove the contract.

21. The statement by Allen to Mrs Berry after the phone call that the caller had been given "5,000" and expected another 5,000 and that it was "Ray" that he had been speaking to is simply hearsay. Its probative force to prove the identity of the caller depends solely on the assertion of that fact by Allen. Clearly the statement proved Allen's knowledge of the identity of the caller but Allen's knowledge or state of mind was entirely irrelevant to any fact in issue. If Allen had been heard to say "I made a contract with Pollitt to murder Williams but he shot Simpson by mistake", the statement would have been inadmissible as hearsay. To infer the truth of the statement made by Allen after the phone call from Allen's state of mind or from his knowledge of the facts asserted in the statement is to treat the statement as hearsay. Evidence of that statement was inadmissible.

22. The statements made by Allen to Mr Berry in the days following the murder were also simply hearsay. To the extent that they tended to prove any fact, the probative force depended on giving credit to Allen's assertions of the fact that "Roy" had had a contract to do a job that he had "buggered up" or, to put it another way, the probative force of the evidence depended on an inference of the truth of what Allen said drawn from Allen's apparent knowledge of the facts. Whichever way the probative force of that evidence be put, evidence of Allen's statements to Mr Berry was inadmissible.

23. Thus, two inadmissible pieces of evidence apparently identifying Pollitt as the person who had "buggered up" the contract were laid before the jury. This identification came from the deceased person, Allen, who had allegedly made the contract that Williams should be murdered. Having regard to the source of those statements and their propinquity to the time of the murder, it is impossible to discount their prejudicial effect on the mind of the jury. Indeed, the very argument in favour of the admissibility of these statements assumes the credibility of Allen's assertions. A direction to the jury by the trial judge that Allen's statements were "not evidence against the accused man" was quite insufficient to remove the seriously inculpating evidence of Allen's express identification of Pollitt as the murderer. The admission of those statements in evidence was erroneous in law and the prosecution cannot show that the appellant did not lose a chance of acquittal that would have been open to him had the evidence been excluded. I would grant special leave to appeal, allow the appeal, quash the conviction and order a new trial.

24. Had it been necessary for me to address the other questions raised in the reasons for judgment of Dawson and Gaudron JJ., I would be in general agreement with their Honours, though I would state the duty of a trial judge to give a warning in the terms used in the joint judgment in Longman v. The Queen (59) (1989) 168 CLR 79, at p 86:

"the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case".

DEANE J. I agree with Dawson and Gaudron JJ. that, for the reasons which they give, the learned trial judge was correct in not directing the jury that the witnesses Raymond John Denning ("Denning") and Gary Roger Jones could not corroborate each other. Two other issues remain for determination. The first relates to the adequacy of the learned trial judge's direction to the jury in relation to the evidence of Denning. The second relates to the admissibility of certain evidence given by Mr and Mrs Berry of statements made by Dennis Allen ("Allen"), in the absence of the appellant ("Pollitt"), to the overall effect that Pollitt had, on 18 September 1984, killed the deceased ("Simpson") as a result of a mistake of identity. The prosecution case was that Pollitt had entered into an arrangement with Allen (who died before the trial) to kill a man called Alan Williams but had killed Simpson after mistaking him for Williams. The evidence of Denning

2. The evidence of a witness about an oral confessional statement allegedly made to him by an accused while the witness and the accused were incarcerated together in a prison is liable to be unreliable for a number of reasons. One such reason is that such evidence is easily concocted. Another is that, where such evidence is concocted, an accused will ordinarily be denied the possibility of corroboration of his denial of it. Another reason is that it is likely that a "prison informer" will be of bad character. Another is the likelihood that a prison informer may be motivated to fabricate such evidence either by a perception that he will derive some benefit in terms of sentence, treatment or release on parole or by reason of any of a variety of pressures of a type which may easily arise in a prison environment and which may not be apparent to a jury.

3. All those reasons for the prima facie unreliability of the evidence of a prison informer about an alleged oral confessional statement made by another prisoner applied to the evidence of Denning in the present case. Denning's evidence was that the alleged confessional statement, which he claimed to remember "nearly word perfect", was made in the course of a 1988 conversation, initiated by Pollitt, in a prison yard at Goulburn Jail in New South Wales. It was not suggested that anyone else overheard any part of the conversation. Denning had an extraordinarily bad criminal record. At the time he commenced to provide information to the authorities, he was serving a life sentence in a Victorian jail and, unless granted immunity (for which he had applied), expected to be charged with a serious crime in Queensland when released. He was at least partly motivated, in providing information and giving evidence, by a desire to receive favourable treatment from the authorities. He had been "absented" from prison "so as to ... assist the police with their inquiries" in relation to a large number of cases in which he alleged that he had been the recipient of confessional statements by fellow prisoners. Plainly, the ordinary rule that a warning should be given whenever it is necessary to avoid a real risk of miscarriage of justice by reason of the potential unreliability of evidence required that an appropriate warning be given by the trial judge in his directions to the jury in relation to Denning's evidence. As I followed the argument, so much was common ground. The real question as regards this issue in the case is whether the warning given by the learned trial judge was inadequate.

4. The primary warning given by the trial judge in relation to Denning's evidence was along the lines of a traditional corroboration warning. The jury was directed to "look to see if there (was) independent evidence" which corroborated the evidence of Denning and to look for "evidence from some other acceptable source which implicates the accused ... in the crime". In my view, such a corroboration warning is not really appropriate to deal with the potential unreliability of the evidence of a prison informer about an oral confessional statement allegedly made by a fellow prisoner. Where a prison informer supplies information after encouragement by the authorities, the likelihood is that there will have already existed some evidentiary material which was known to the authorities and which connected the accused with the alleged offence. Thus, in the present case, both Denning's evidence and Pollitt's unsworn statement indicate that Denning knew that the police had other incriminating evidence against Pollitt at the time when Denning first provided information to the police. In such circumstances, a warning to the effect that it is dangerous to rely on a prison informer's evidence of an alleged oral confessional statement unless that evidence is corroborated by other evidence connecting or tending to connect the accused with the offence charged really serves little useful purpose. Indeed, such a warning could conceivably have the unintended effect of conveying to the jury a suggestion that, once they find some corroboration, it is safe to rely upon such evidence. If a corroboration warning is to be of real use in such a context, it must be in terms which direct the need for corroboration towards the reliability of the particular evidence, that is to say, material which corroborates the actual making of the oral confessional statement. An example of that type of corroboration is evidence establishing both that disputed material in the alleged oral confessional statement is accurate and that that material would not have been known to the witness if the alleged confessional statement had not been made. The usefulness of even that kind of corroboration will, however, depend very much on the circumstances. If, for example, the prison informer has provided information to the police about alleged confessional statements made by a number of prisoners in relation to a number of different alleged offences, the possibility that he may have derived the corroborating information from police sources cannot be ignored.

5. It would be unwise to seek to formulate in the abstract the contents of an appropriate warning for every case where the prosecution places significant reliance upon the evidence of a prison informer. Such a warning is most likely to be understood by a jury and to be effective if it is moulded in the words of the trial judge to fit the circumstances of the particular case. The most that should be said is that there will inevitably be cases where the minimum necessary warning will be in unqualified terms which draw attention to the fact that the evidence is of its nature potentially unreliable, which stress the need for very careful scrutiny of it and which warn that it would be dangerous to base a conviction upon it. If the prosecution evidence had stood alone, the present would have been such a case. It is true that Denning's evidence contained details of matters relating to the killing which could well have been provided to him by Pollitt in the course of a confessional statement. It is also true that there was other evidence corroborating Denning's evidence in the sense that it connected Pollitt with the offences with which he was charged. Nonetheless, it appears to me that the overall prosecution evidence did not serve to reduce the inherent unreliability of Denning's testimony as that of a police informer seeking personal advantage by providing information to the authorities about an extraordinarily large number of confessional statements allegedly made by fellow prisoners. To the contrary, that inherent unreliability was underlined by Denning's insistence that he was innocent of the crime for which he had been serving a life sentence when he commenced to provide information to the police. It was also underlined by the contrast between Denning's evidence at the trial and his initial statement to the police which had, apparently, been tape-recorded. In his evidence at the trial, Denning provided an allegedly "nearly word perfect" account of a quite detailed confessional statement which he said had been made to him by Pollitt in Goulburn Jail in 1988. In the course of that statement, Pollitt allegedly expressly admitted that he had killed "the wrong bloke" while acting under an arrangement between himself and Allen that he would kill Williams. In contrast, Denning's initial statement to the police about the killing was as follows:

"'This would have been probably - oh, I'm not sure. Ah, early or middle '80's, I think 1985, something like that. It was a few years back, ah, ah, I don't really know the full story, but I know there was a bloke knocked and Roy'd done it and oh, arrested a few years ago, ah, I know a bit about the case and it's nothing to do with Russell Cox.'"

6. The prosecution case did not, however, stand alone. Pollitt's own unsworn statement at the trial provided corroboration of the accuracy and reliability of Denning's evidence in important respects: that, while Pollitt and Denning were fellow prisoners, they had had a conversation about the killing of Simpson; that Pollitt had said things about the killing being the result of a mistake in the identity of the victim. Indeed, in his unsworn statement, Pollitt denied the accuracy of Denning's evidence in only one respect. That respect was that, according to Pollitt, he was telling Denning about "what (he) thought the allegations were against (him)" and not about what actually had happened. While Pollitt's unsworn statement does not corroborate Denning's evidence on the critical issue between the two, namely, whether Pollitt had been speaking of police allegations or of what had actually happened, it goes a long way towards removing the ordinary possibility that the evidence of a police informer is a complete fabrication.

7. Even in the context of the support for important aspects of Denning's evidence which was provided by Pollitt's unsworn statement, it would, in my view, have been preferable for the learned trial judge to have directed the jury in unqualified terms that Denning's evidence was, for the reasons which I have indicated, potentially unreliable. That direction could, of course, have been accompanied by a comment drawing the jury's attention to the fact that Pollitt, in his unsworn statement, had expressly disputed the accuracy of Denning's evidence only to the limited extent that he claimed that he had told Denning only of allegations made against him. The adequacy of his Honour's directions must, however, be considered in the context of the fact that counsel for Pollitt, who would have been conscious of the conduct of the trial and the content of counsels' closing addresses, did not seek any relevant further directions. In that context, I have come to the conclusion that the combined effect of his Honour's remarks in summing up to the jury satisfied the requirement that an appropriate direction be given to warn the jury of the potential unreliability of the evidence. Those remarks included: (i) the descriptions of Denning as "a person with a long criminal history", "a person of bad character" and "a tainted person"; (ii) a warning that "common sense dictate(d)" that the jury "scrutinise (Denning's evidence) very carefully"; (iii) a direction that "experience has shown that persons of (Denning's) calibre" may "have motives for not telling the truth"; and (iv) an instruction to look for evidence "from some other acceptable source".
The evidence of Mr and Mrs Berry

8. The relevant evidence of Mr and Mrs Berry fell into two categories. The first consisted of Mrs Berry's evidence about what Allen had said in the course of, and immediately after, a telephone call which he received some time after Simpson had been killed. The second category consisted of the evidence of Mr Berry about some subsequent statements made by Allen, independently of the telephone call, to the effect that someone wanted $5,000 and "didn't do the job right" and that "Roy" had got the wrong person and wanted to be paid for it. References to "Ray" or "Roy" were understood as references to Pollitt who was apparently known by both those names.

9. It can be said at once that the second category of evidence - i.e. the evidence of Mr Berry - was not, in my view, admissible. That evidence was, of course, relevant to the central issues in the trial. It was common ground at the trial that Simpson had been killed as the result of an arrangement between Allen and the killer for the killing of Williams. Understood in context, the content of what Allen was alleged to have said established, if it was accepted as true, that there had been an arrangement between Allen and Pollitt that Pollitt would kill Williams and that, as a result of a mistake in identity, Pollitt had in fact killed Simpson. The evidence was not, however, admissible as proof of those matters. If tendered for the purpose of establishing the truth of them, it was hearsay.

10. Mr Berry's evidence of what Allen had said also tended to establish what Allen believed at the time he made the relevant statements: his belief that there was an arrangement between himself and Pollitt; his belief that Pollitt had mistakenly killed Simpson. If tendered for the purpose of establishing that Allen believed those things, the evidence was not hearsay (60) See, generally, Walton v. The Queen (1989) 166 CLR 283. Nonetheless, it was inadmissible in that what Allen may or may not have believed about an arrangement between himself and Pollitt was not, of itself, a material fact in the trial of Pollitt for the alleged murder of Simpson. If, for example, Allen had been alive at the time and had been called as a witness, the Crown would not have been entitled to lead evidence that he believed that he had an arrangement with Pollitt and that he believed that Pollitt had killed Simpson. The reason why that is so is that Allen's beliefs were not, of themselves, admissible to prove anything against Pollitt on his trial for the murder of Simpson. If those beliefs had been based on things which Allen had seen Pollitt do or heard Pollitt say, he could have given evidence that he had seen or heard Pollitt do or say those things. He could not, however, have supplemented that evidence by evidence of the beliefs he had formed as a consequence of what he had seen and heard. On the other hand, if his beliefs were based not on anything that he had seen or heard Pollitt do or say but upon, for example, what a third person had told him that a fourth person had said, he could not give hearsay evidence of what the third person had said. Nor could he indirectly give such double hearsay evidence by giving evidence of what he believed as the result of what the third person had said.

11. There are cases, apart from conspiracy cases, in which the evidence indicates that the accused and another person acted in preconcert in the commission of a specific crime. In such cases, evidence of what the other person did or said in furtherance of the commission of that crime may be admissible against the accused for the reason that the combination or preconcert to commit the crime is "considered as implying an authority to each to act or speak in furtherance of the common purpose" on behalf of the other (61) Tripodi v. The Queen (1961) 104 CLR 1, at p 7. It is at least arguable that the present case fell within that class of case with the result that things said and done by Allen, in furtherance of a criminal arrangement between Pollitt and himself of which evidence had already been adduced (62) ibid, were also admissible against Pollitt. Even in such cases, however, "it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible ... against his (companion) in the common enterprise" (63) ibid. The reason why that is so is that such narrative statements are ordinarily not in furtherance of the common design and, therefore, are not within the scope of any implied authority. Thus, in the present case, the statements which Allen allegedly made, independently of the telephone conversation, to the effect that Pollitt had "got" the wrong person were not made in furtherance of any common design to kill Williams or do anything else. They were assertions of a purely narrative character. They would have been admissible against Allen, if he had been on trial, as admissions made by him. They were not admissible against Pollitt.

12. The position is not so clear as regards the evidence falling in the first category, that is to say, Mrs Berry's evidence relating to what Allen had said during and after the telephone conversation. Her evidence was to the effect that, on the night after Simpson was shot, she had been present at Allen's home when he received a telephone call in the course of which he had said to the caller: "You get the rest of the money when you do the job properly" and that, immediately after that telephone call, Allen had "said it was Ray" (i.e. Pollitt) to whom he had been speaking. According to Mrs Berry, Allen also made the comment: "I have already given him 5,000, he expects me to give him another five for something he hasn't done". No complaint is made on behalf of Pollitt about the evidence of what Allen said in the course of the telephone conversation. As has been said, it was apparently common ground at the trial that there had been an arrangement for the killing of Williams between Allen and the person who killed Simpson. The forensic dispute was about whether the killer was Pollitt or someone else. The complaint made on behalf of Pollitt is about the admissibility of Mrs Berry's evidence of what Allen said, immediately after the telephone conversation, which identified Pollitt as the caller and, when understood in context, impliedly asserted that Pollitt had killed Simpson as the result of a mistake.

6. Moreover, not only is the evidence of a prison informer potentially unreliable but there is a real danger that it will be accepted. The evidence which the prison informer frequently gives is that of a gaol-yard statement by the accused which amounts to a confession of guilt. Almost invariably, the statement is built around facts that the accused does not dispute or cannot disprove except by a bare denial. This circumstantial detail is apt to give the evidence the impression of inherent credibility. Furthermore, evidence given by prison informers is notoriously difficult to break down. The prison-informer witness is often a skilful liar, with a shrewd knowledge of the criminal courts and their procedures, a quick intelligence well suited to the giving of evidence and withstanding cross-examination and a good demeanour and friendly personality (110) cf. Brown, "Prisoner informants: the new growth industry", (June 1991) Australian Society, at p 11. At the conclusion of the cross-examination, the jury is likely to be left with the impression of a personable witness whose evidence-in-chief was intrinsically credible and remained unshaken after a "searching" cross-examination. The danger from prison-informer evidence, therefore, lies in the plausibility as well as the character of those who usually give it.

7. More than 300 years have passed since Sir Matthew Hale warned that "the truth" was that more mischief had come to "good men ... by false accusations of desperate villains, than benefit to the public by the discovery and convicting of real offenders"(111) Pleas of the Crown, (1736), vol.2, p 226. Whether "the truth" is the same today as it was in the time of Hale is in the nature of things unknowable. But certainly the dangers of acting on the evidence of "desperate villains" are no less today than when Hale wrote in 1650.

8. The use of prison informers seems to have increased significantly in recent years although statistical proof is not publicly available(112) See Brown and Duffy, "Privatising Police Verbal: The Growth Industry in Prison Informants" in Carrington et al. eds, Travesty] Miscarriages of Justice (1991), pp 148-149; and cf. Drummond and Domican (No.2) (1990) 46 A Crim R 408; Anderson (1991) 53 A Crim R 421. Various explanations for this phenomenon have been offered. None of them casts law enforcement or the administration of justice in a favourable light(113) See, for example, Brown, op. cit., at pp 11-12; Brown and Duffy, op. cit., pp 159-162; Gibney and Woodyatt, "Gaolhouse verbal", (1991) 16 Legal Service Bulletin, 84. Whatever the explanation for the increase in the use of prison informers, their evidence is "suspect" evidence given by "suspect" witnesses (114) cf. Reg. v. Hester (1973) AC 296, at p 324. A conviction made upon such evidence cannot be regarded as safe unless the jury were warned against the dangers of convicting on such evidence. But what form should the warning take?

9. To direct a jury in terms of the conventional corroboration warning seems inappropriate. In many, perhaps the majority of, criminal cases where a prison informer gives evidence, the Crown case will contain corroboration in the traditional sense because it contains "independent testimony which affects the accused by connecting or tending to connect him with the crime" (115) R. v. Baskerville (1916) 2 KB 658, at p 667. Very often, the accused person will have met the informer only because the accused is in gaol awaiting trial on the charge in question. But even in cases where the charge has only been instituted because of information provided to the authorities by the informer, it will often be the case that the accused is already suspected of being involved in the crime and that there is some independent evidence which tends to connect the accused with the crime. In these circumstances, the conventional corroboration warning gives the accused little, if any, protection against the dangers of acting on the evidence of prison informers. Indeed, a real possibility exists that such a direction might unwittingly induce the jury to believe that it is safe to act upon the evidence of a prison informer because his or her evidence is "corroborated".

10. In McKinney(116) (1991) 171 CLR, at p 476, this Court held that a trial judge was bound to direct the jury that:
"they should give careful consideration as to the dangers
involved in convicting an accused person in circumstances
where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated". Such a direction was required even though the Court made it plain that there was no suggestion(117) ibid., at p 478:
"that police evidence is inherently unreliable or that
members of a police force should, as such, be put in some
special category of unreliable witnesses". Because evidence by prison informers is inherently unreliable, it follows that a confession allegedly made to a prison informer must be the subject of a direction at least as stringent as that required when a disputed confession is alleged to have been made while the accused was in police custody.

11. If accused persons are to be protected against the dangers arising from the evidence of prison informers and the fairness of criminal trials are to be ensured, juries must be directed as to the danger of acting upon such evidence. Ordinarily, that will mean that the jury must be directed that it is dangerous to act on that evidence where the account of the prison informer is not substantially confirmed by independent evidence. Thus, if the informer alleges that the accused has confessed to the crime, it will be dangerous to act on his evidence unless the making of the confession is substantially confirmed by independent evidence. If the informer alleges that he saw or heard the accused do or say something which incriminates the accused, it will be dangerous to act on the allegation unless the doing of the act by the accused or the making of the statement is substantially confirmed by independent evidence. Only in the most exceptional case, if at all, could the evidence of a fellow prisoner be regarded as independent evidence for this purpose. Furthermore, the jury should be warned not only as to the inherent or general danger of acting upon the evidence of a prison informer but, where appropriate, instructed to consider any specific matters which could reasonably be regarded as undermining the credibility of the witness. Finally, the trial judge should draw to the jury's attention the particular matters which could reasonably be regarded as confirming the evidence of the prison informer.

12. In this case, the learned trial judge did not direct the jury that it was dangerous to convict on the evidence of Denning unless they found that there was independent evidence which substantially confirmed that the applicant had made the confession in question. Nor did his Honour direct the jury as to any matters that could reasonably be regarded as confirming the making of the confession. Nevertheless, in the very special circumstances of this case, his Honour's directions cannot be said to have failed to bring home to the jury the danger of acting on the evidence of Denning. Significantly, counsel for the applicant at his trial did not object to his Honour's directions concerning Denning or ask for any re-direction in relation to that evidence.

13. In his unsworn statement, the applicant admitted, expressly and by necessary implication, that he had had a conversation with Denning in Goulburn gaol about the murder of Simpson. It his statement, the applicant said that in 1987 he had heard that "there was a warrant out for my arrest" over the murder and that he had "tried to collect everything that I could on the subject to find out what they were alleging I had done". He said:
"I wrote to my solicitor and asked him to make
inquiries on a number of occasions. I asked quite a few people to dig up information for me relating to this matter. In the end, I had some news from the solicitor on what the case was about and some statements from witnesses. I thought at the time that the killer was supposed to have made the mistake because of the mix-up on cars, and that there was a photograph involved. Whether that came from the statements or the news, I can't remember. Anyway, I told Ray Denning about what I was doing, what I thought the allegations were against me. I might have mentioned Kathleen Pettingill's name, but I cannot have said more about it than I knew, and that was no more than anybody knew. That is as much as I can tell you."

14. The unsworn statement of the applicant makes it clear that the conflict between the applicant and Denning concerning their conversation was a narrow one. The dispute was whether the applicant had told Denning what he had done or merely what he was alleged to have done. Once the applicant conceded that, well before he had been arrested for the murder of Simpson, he had spoken to Denning in Goulburn gaol concerning his knowledge of that crime, the case wore a very different complexion from the ordinary case of an allegation by a prison informer. It was not a case where he was denying that he had ever spoken to Denning about the matter. Apart from the dispute as to whether the applicant had merely told Denning what was alleged against the applicant, he conceded the accuracy of Denning's evidence. The applicant's statement also impliedly conceded the accuracy of Denning's evidence when Denning testified that it was the applicant who initiated the critical conversation and that the matter had been discussed on more than one occasion.

15. In determining the adequacy of the directions of the learned trial judge, this Court must keep firmly in mind that counsel for the applicant and his Honour had advantages which are denied to this Court. They understood the atmosphere and conduct of the trial, the tone and content of counsels' addresses to the jury, and the extent to which the Crown relied on the evidence of Denning having regard to the evidence of Jones, Jennifer Curillo and the Berrys. The effect of such matters can rarely be fully appreciated from a reading of the frozen record of the trial which comes before an appellate court, and this case is no exception. In the context of the applicant's concessions, the failure of counsel for the applicant to seek any further directions concerning the danger of acting on Denning's evidence has considerable significance.

16. The duty of the learned judge was to ensure that the jury fully understood the danger of acting on the evidence of Denning. Ordinarily, that duty would only be discharged by the trial judge informing the jury that it is dangerous to act on the evidence of a prison informer unless that evidence is substantially confirmed by independent evidence. That was not done in this case, but it was not quite the ordinary case. It is true that Denning was a prisoner who had been serving a life sentence since 1972 and that his evidence was subject to all the dangers which are inherent in the evidence of prison informers. But the conflict between the evidence of Denning and the statement of the applicant was a narrow one. Although it would have been better if the learned judge had given the ordinary warning, the applicant has not established that, in the special circumstances of this case, the jury would not have fully understood the danger of acting on the evidence of Denning. His Honour told them that Denning was a person of bad character who had committed many different criminal offences and that persons such as Denning "may have motives for lying". He also directed them that they must scrutinise his evidence very carefully and that they must "look to see if there is independent evidence you accept which corroborates the evidence of the witness in question". It is true that the jury would probably have understood the reference to corroboration as a reference to the applicant's involvement in the crime rather than as a reference to corroboration of the making of the confession. But in a case where the relevant issue was simply whether the applicant had told Denning what he had done or merely what he was alleged to have done and where at the trial counsel for the applicant found no fault with the direction, it cannot be said that the directions of the learned trial judge were inadequate to sheet home to the jury the danger of acting on Denning's evidence.
The admissibility of the out-of-court statements

17. The Berrys gave evidence of four statements made by Dennis Allen during a period which was roughly contemporaneous with the murder of Lindsay Simpson. The trial judge admitted the statements on the basis that they showed Allen's state of mind and demonstrated that Allen was "a party to the agreement to kill Williams".

18. However, Allen's state of mind was not a fact in issue nor was it relevant to a fact in issue. On the trial of the applicant, it was not open to the Crown to prove an agreement between Allen and the applicant by reference to Allen's state of mind. Cases such as Walton v. The Queen (118) (1989) 166 CLR 283 which permit proof of a person's intention or plan as a step in proving that the intention or plan was carried out have no application where the person's state of mind is sought to be used to prove the occurrence of a past fact or matter. If Allen had been alive, he could not have been called to give direct evidence of his state of mind in respect of those conversations which suggested that he had an agreement with the applicant. It follows that his state of mind could not be proved circumstantially by reference to his out-of-court statements. Consequently, the statements were not admissible on the ground that they showed Allen's state of mind and demonstrated that he was a party to an agreement to kill Williams. It is necessary, however, to determine whether the statements were admissible as relevant circumstances of the case or excluded by the rule against hearsay evidence.

19. A statement is "hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement" (119) Subramaniam v. Public Prosecutor (1956) 1 WLR 965, at p 970. The objection to hearsay evidence is that it is unreliable - the declarant is not subject to cross-examination and his or her truthfulness and powers of memory, recall, perception and narration cannot be tested. Because the reliability of an implied assertion is dependent upon the material expressly stated, the grounds for excluding express assertions are equally applicable to implied assertions. Consequently, for the purpose of the hearsay rule, implied as well as express assertions are regarded as "contained" in an out-of-court statement(120) Wright v. Doe d. Tatham (1837) 7 Ad and E 313 (112 ER 488); Reg. v. Blastland (1986) AC 41; Walton v. The Queen (1989) 166 CLR, at p 292; Reg. v. Benz (1989) 168 CLR 110, at p 143; Reg. v. Kearley (1992) 2 WLR 656.

20. Allen's statements to the Berrys that they should watch the late news and that the shooting was one of "mistaken identity" tended to prove that Allen had knowledge that a murder was about to take place and that the wrong man had been murdered. But Allen's knowledge of those matters was not a fact in issue nor could it be used to prove any agreement between the applicant and Allen.

21. The statement "(y)ou get the rest of the money when you do the job properly" was also inadmissible. It could not be used testimonially to prove the facts expressly or impliedly asserted in that statement. Although the statement was circumstantial evidence of Allen's state of mind, viz. that he was not prepared to pay the caller for a job which had not been done, Allen's state of mind was not a fact in issue, nor, without infringing the rule against hearsay, could his state of mind as manifested by that statement be used to find that the job had not been done or that there was an agreement to do a job. The hearsay rule would be meaningless in practice if it prohibited a statement being used directly to prove a fact contained in the statement but allowed the statement to be used circumstantially to prove a state of mind from which could be inferred the existence of the very fact which could not be proved directly (121) cf. Reg. v. Blastland (1986) AC, per Lord Bridge of Harwich, at p 54.

22. However, the statement "(y)ou get the rest of the money when you do the job properly" also constituted a promise by Allen that he would pay the caller for a service which remained to be performed. If the making of the promise at that time was a fact in issue or relevant to a fact in issue, the statement would have been admissible to prove that promise. But the statement was not admissible on either of those bases. The making of a promise by Allen, after the shooting of the deceased, to pay the applicant when the job was done was not a fact in issue. Moreover, it could only prove an earlier promise by Allen to pay the applicant to kill Williams by an inadmissible train of hearsay reasoning. Although the terms of the promise implied that there was an earlier agreement between the caller and Allen to carry out some "job", to use the statement for that purpose would be to use an out-of-court statement to prove the occurrence of a past fact or matter and would be an infringement of the rule against hearsay. The statement would not be offered as proof of a renewed promise to pay but as impliedly asserting that another agreement had been made in the past. Accordingly, the statement was not admissible on the ground that it constituted the making of a promise by Allen to pay the caller.

23. Furthermore, the statement and the contemporaneous identification of the caller as "Ray" were not admissible as exceptions to the hearsay rule. In the light of the widespread use of the telephone as a medium of communication and the inherent general trustworthiness of contemporaneous statements identifying telephone callers, the common law should now recognise, as an exception to the hearsay rule, the admissibility of evidence by a witness that, in his or her presence, a party to a telephone conversation identified the other party to the conversation by a statement made during or immediately before or after the conversation in those cases where the identity of the other party to the conversation is relevant. In Benz (122) (1989) 168 CLR, at p 144, Gaudron J. and I pointed out that:
"notwithstanding the decision in Myers v. Director of Public Prosecutions (123) (1965) AC 1001, a strong case can be made for
developing and applying the common law rules of evidence by reference to the principle that hearsay evidence will be admitted when it appears to have a high degree of reliability". But the exception should be confined to categories of ordinary social and business conversations where there is no real ground for concluding that the identification was fabricated or fictitious. The identification of a party to an ordinary social or business telephone conversation by the other party, when it is made immediately before or after or during such a conversation, is ordinarily a spontaneous and trustworthy identification. Such evidence falls into a category which is sufficiently reliable to be admitted as an exception to the hearsay rule. However, identification made in the course of, or for the purpose of, a criminal venture does not seem to be sufficiently trustworthy to be admitted under this exception. Those engaged, or about to engage, in criminal ventures commonly use false names, particularly first names, to conceal the identity of those to whom they are speaking on the telephone. Moreover, it is not unknown for such persons to invoke the names of people in authority ("That was the Premier" or "That was the boss, he wants ...") to give credence to their requests or importunities. Although in particular cases the application of the hearsay rule to telephone conversations made in the course of or for the purpose of a criminal venture may result in trustworthy evidence being excluded, the risk of injustice is sufficiently great to refuse to include such identifications in a new exception to the prohibition against receiving hearsay evidence. In many cases, the overheard part of a telephone conversation made in the course of or for the purpose of a criminal venture will be admissible as a statement made in furtherance of a common criminal purpose (124) See Tripodi v. The Queen (1961) 104 CLR 1. If it is not admissible on that basis, however, it should continue to be governed by the ordinary rules of evidence excluding the reception of hearsay evidence.

24. Furthermore, the overheard part of the conversation with the identified party should be admissible only in so far as it tends to prove, otherwise than as an admission or as hearsay, a fact in issue or a fact relevant to an issue. Because the response of the identified party has not been heard by the witness, it would not be appropriate to admit the overheard part of the conversation as an admission in cases where the identified party is also a party to the proceedings. And the mere fact that the conversation took place through the medium of a telephone and the other party to the conversation can be identified is not a reason for excluding the rule against hearsay evidence to the overheard part of the conversation.

25. Since it was the Crown case that the statements to which the Berrys testified were made for the purpose, if not in the course, of a criminal venture, neither the statements nor the identification of the applicant was admissible as an exception to the hearsay rule.

26. Finally, the statements that Allen "had given (Ray) a job to do and he had stuffed it up" and that "I have already given him $5,000, he expects me to give him another five for something he hasn't done" were pure hearsay statements and inadmissible.

27. Nevertheless, it is said that those statements of Allen which expressly or by implication refer to the applicant were admissible because they are to be classified as conduct or part of a pattern of conduct by Allen and not as hearsay statements. However, the rule against hearsay extends to at least some forms of conduct (125) Wright v. Doe d. Tatham; Chandrasekera alias Alisandiri v. The King (1937) AC 220; and see Walton v. The Queen (1989) 166 CLR, per Mason C.J. at p 292. It would be surprising if it did not. The contrary view would mean that, on an issue of roadworthiness, the out-of-court statement by a motor mechanic that the brakes of a motor car have not been working properly would be inadmissible but his conduct in taking his children on a drive of the car immediately after making the statement would be admissible as evidence of his expert opinion that the car was roadworthy. It is unnecessary, however, to determine in this case to what extent the rule against hearsay applies to conduct.

28. Here the "conduct" consists of nothing more than out-of-court statements by Allen which collectively assert, expressly or impliedly, that Allen had paid the applicant money to kill a person, that the wrong person had been shot, and that the applicant would get the rest of the money owed to him when the right person was killed. In so far as this "conduct" of Allen incriminated the applicant or Allen, it consisted of reports by Allen to Mr and Mrs Berry of what the applicant and Allen had agreed to do and of what the applicant had already done. That is to say, the evidence of the Berrys concerning this "conduct" of Allen was a hearsay account of transactions and events already concluded. In so far as the "conduct" evidenced Allen's state of mind, that was not a fact in issue or relevant to a fact in issue for the reasons I have already given. If, as is contended, the statements were simply some of the circumstances of the case which tended to prove that Allen had arranged for the applicant to kill Williams, nevertheless those circumstances consist of hearsay statements and statements showing Allen's irrelevant knowledge of the murder. If the Berrys could give admissible evidence of the statements in question, it would lead to the extraordinary result that it was also open to the Crown to call Allen, if he had been alive, to give evidence of the same statements as part of the proof that he had arranged for the applicant to kill Williams. The distinction between self-serving statements and original evidence and between hearsay statements and original evidence would be all but obliterated if a series of such statements as those in question could be admitted by classifying them as evidence of admissible conduct and not inadmissible hearsay.

29. Accordingly, the evidence of the Berrys concerning the statements by Allen was inadmissible.
The effect of the trial judge's directions

30. In the course of his summing up, the learned trial judge strongly warned the jury on more than one occasion that statements made by Allen were not evidence against the applicant. Thus, his Honour said:
"But they do not establish the facts asserted by Allen and
cannot establish the facts asserted because they were said in the absence of the accused man. They can only be used by you as establishing Allen's state of mind when he said them and to demonstrate, if you accept them, that he, Allen, was party to the agreement to kill Williams. But they are not evidence against the accused man. Now is that clear? Very well."

31. Thus, the jury were clearly directed that the statements were not evidence against the applicant nor even evidence of the facts. Moreover, his Honour's question "Now is that clear?" and his comment "Very well" naturally lead to the conclusion that the members of the jury, by some form of words or conduct, acknowledged that they understood the use which they could make of the evidence. In that context, the question is whether, notwithstanding his Honour's warning and the jury's acknowledgment of their understanding of it, the admission of the evidence is likely to have prejudiced the fair trial of the charge. That question would have to be answered in the affirmative if there was any significant possibility that the jury either used the statements against the applicant or were so affected by them that they could not impartially evaluate the evidence which was admissible against the applicant. Having regard to the strength of his Honour's warnings, the first alternative can be discarded. However, the second alternative is not so easily discarded. The statements contained material which strongly incriminated the applicant. But the potential prejudicial effect of that material must be evaluated in the light of all the evidence in the case. The matters referred to in those statements were substantially in evidence independently of the evidence of the Berrys. Thus, Jones not only described the murder of Simpson by the applicant in detail but testified that the applicant had said that he was doing the killing for Allen and that, if Jones provided assistance, he would receive a large sum of money. Jones also testified that on the day after the killing of Simpson the applicant said that he had shot the wrong person and was worried about what Allen would say. Later that day Jones saw the applicant carrying a cardboard box containing a large sum of money. Jennifer Curillo testified that Allen and the applicant had talked about getting rid of Williams. She also testified that the applicant had telephoned and said: "Tell Dennis the job's done", that on the day following that call she had read a newspaper article concerning a mistaken-identity killing and that some days later she heard Allen tell the applicant in an angry voice that he had got the wrong man.

32. In this context, it should not be concluded that the admission of the evidence of the Berrys prejudiced the fair trial of the charge. This was a sordid case of a contract to kill a drug dealer which brought about the death of an unintended victim. Inevitably, the evidence took the jury into the brutal and ruthless world of drug dealing and contract killings. Furthermore, a strong body of evidence identified the applicant, expressly or by implication, with the callous killing of Simpson. It is difficult to believe that jurors who had heard the admissible evidence, much of which was horrifying, might have been so influenced by evidence of the statements made to or in the presence of the Berrys that they could not impartially evaluate the admissible evidence in accordance with the learned trial judge's directions. Although the evidence of the Berrys was wrongly admitted, this court should conclude that the jury followed his Honour's directions and did not use the statements as evidence of the facts or as evidence against the applicant and that the statements did not result in any miscarriage of justice.
Order

33. Special leave should be granted in respect of the grounds dealt with in this judgment, but the appeal should be dismissed.

Orders

Application for special leave to appeal granted.

Appeal dismissed.