QUESTION of LAW RESERVED (NO 3 of 1997) No. SCCRM-97-321 Judgment No. 6618 Number of Pages - 20 Criminal Law and Procedure

[1998] SASC 6618

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

PRIOR, PERRY AND WILLIAMS JJ

CATCHWORDS:

Criminal law and procedure - admissions - admissibility in joint trial - a trial judge reserved questions pursuant to s350 of the Criminal LawConsolidation Act 1935 regarding the admissibility of a record of interview where that interview had been excluded as inadmissible as part of the prosecution case against one accused due to breaches of s74D of the SummaryOffences Act 1953 - observations as to admissibility of the record of interview at the behest of a co-accused at a joint trial - observations as to whether accused should be tried jointly. Criminal Law Consolidation Act 1935 s350; Summary Offences Act 1953 ss74C, 74D, 74E, 74G; Evidence Act 1929 ss18, 29, 45A, 45B; Police and Criminal Evidence Act 1984 (UK) , referred to. Myers
(1998) AC 124; (1977) 3 WLR 552; Harbach (1973) 6 SASR 427; Edwards (1993) 117 ALR 600; Bannon (1995) 185 CLR 1; Walton (1989) 166 CLR 283; Benz (1989) 168 CLR 110; Pollitt (1992) 174 CLR 558; John St Clair Golightly Supreme Court of NSW, 3 February 1997, unreported; Van Beelen (1974) 9 SASR 163; Mawaz Khan [1976] 1 AC 454; Chin (1985) 157 CLR 671; Anic and Ors (1993) 61 SASR 223; Webb and Hay (1992) 59 SASR 563; O'Boyle (1991) 92 Cr App R 202; Lui Mei Lin
(1988) 88 Cr App R 296; Kutny Court of Criminal Appeal, 3 August 1995,judgment S5200, unreported, considered.

HEARING:

ADELAIDE, 8 December 1997, 27 March 1998 (hearing) 1 May 1998 (decision)

#DATE 1:5:1998

Appearances:

R:

Counsel: Mr P Brebner

Solicitors: DPP (SA)

Accused Ian Roger Wanganeen:

Counsel: Mr G F Barrett QC

Solicitors: D'angelo Kavanagh

Accused Gary Wayne Smith:

Counsel: Mr P A Cuthbertson

Solicitors: Mangan Ey & Associates Pty Ltd

Accused Robert William Love:

Counsel: Mr N Vadasz

Solicitors: Nicholas Vadasz

ORDER: orders made

PRIOR J

Garry Wayne Smith, Ian Rod Wanganeen and Robert William Love are charged on information with murder. Pleas of not guilty were entered in April 1997. Rule 9 Notices were filed seeking exclusion of evidence. Some rulings were given before the trial judge invoked s350 of the Criminal Law Consolidation Act 1935 to reserve for consideration and determination by the Full Court questions on issues relevant to the trial of the accused.

In reserving the questions the trial judge said:

"The committal papers indicate that Mr Read was found in the men's lavatory next to the Stable Tavern in the Underpass building at 132 North Terrace, Adelaide (opposite the Railway Station) soon after 7.00 pm on 26 June 1996. He had been very badly beaten and later that evening he died. The Crown case is that he was assaulted by the three accused in fulfilment of a common purpose on their part and in circumstances that amounted to murder. The suggested motive is robbery.

Read was found lying unconscious in the lavatory soon after the attack and the police were summoned. Somewhere around 8.00 pm the accused Wanganeen was seen on the foot path in North Terrace outside the Railway Station in the company of a man named Hunter. Later Wanganeen was interviewed by detectives at considerable length at Police Headquarters. In the course of that interview he at first denied having been at the Stables Bar that evening but later in the interview, after the first video and audio tapes had been changed, he admitted that he had been in both the bar and the lavatory about the time of the assault. At the end of the interview he was released but thirty hours later, after the police had viewed some security film, he was arrested and charged with Read's murder. The other two accused were arrested later.

On November 4, I began a voir dire hearing of Wanganeen's application to have excluded from the trial the whole of the police interrogation 26-27 June 1996 and also any evidence about the seizure of his shoes on North Terrace and of his other clothing at

Police Headquarters at the end of that first interrogation, together with any evidence (including DNA evidence) relating to what was found on the shoes and other clothing. On November 11, I ruled that the shoes and clothing evidence could be admitted but that the second part of the interrogation, recorded on the second and third video films, would be excluded on the grounds that the police were in breach of s74D of the Summary Offences Act and that it could be unfair to the accused to admit that evidence. Evidence of the off-camera conversation between Wanganeen and Detective Spencer between the first and second video films was also excluded.

On the previous day I had reserved my decision on those matters and had gone on to consider defence submissions with respect to security camera film recorded in the Stables Bar that evening. In the course of those discussions with counsel Mr Cuthbertson, for the accused Smith, gave notice of an application that he would make in the event of my deciding to exclude any of the Wanganeen interrogation. When I gave my ruling on that subject on November 11, Mr Cuthbertson renewed his application. He gave notice that he would make every endeavour at the trial to get into evidence the off-camera conversation, and the contents of the second and third video films of Wanganeen's interrogation, that I had just excluded. He would do so by an appropriate cross-examination of one of the interrogating detectives or (if the Crown did not call them) by calling them as witnesses when his client came to make his defence, and he would also seek to cross-examine Wanganeen on the subject should Wanganeen give evidence. Mr Cuthbertson accepted the need for editing the record to exclude references to Wanganeen's prison history but otherwise he wanted the full text of the excluded section - some fifty pages of transcript. His submission assumed an inconsistency between the defences of Wanganeen and Smith (and possibly Love as well), and the argument for the admission of the evidence at Smith's instance was that it would support Smith's case to show that Wanganeen was in the lavatory when Read was assaulted (and, I infer, to undermine in advance any denial by Wanganeen in the witness box of his having been there). It was also said to be relevant evidence for Smith as showing a consciousness of guilt on Wanganeen's part, a willingness to make a false accusation against another man (Hunter) with respect to the assault, as a relevant statement against interest, and as going generally to Wanganeen's credit, although I think Mr Cuthbertson acknowledged that this last ground might not be available unless and until Wanganeen gave evidence against him (Evidence Act s18).

Mr Cutherbertson argued that this was a proper case for a ruling or contingent ruling in advance, because, if he was not permitted to elicit this evidence, his alternative application was for a separate trial.

The following cases were cited in support of the application - Mawaz Khan v The Queen [1976] 1 AC 454; The Queen v Chin (1985) 157 CLR 671, at 676; Reg v O'Boyle (1991) 92 Cr App R 202; Anic v The Queen (1993) 61 SASR 223 and R v Webb and Hay (1992) 59 SASR 563. Of these the most important would seem to be O'Boyle and the case on which it relies - Lui Mei Lin v R (1988) 88 Cr App R
296. I can add a reference to the case of Reg v Myers (1996) 2 Cr App R 335 (CA); on appeal [1997] 3 WLR 552 (HL).

Mr Vadasz, for the accused Love, made a like application. He adopted and supplemented Mr Cuthbertson's argument.

Mr Barrett QC, for the accused Wanganeen, submitted that the relevance of the evidence that Mr Cuthbertson sought to bring in could not be judged until Wanganeen had presented his defence. (Wanganeen's name appears after Smith's on the information). However, I understood Mr Barrett to agree that it was an appropriate case for a contingent ruling before trial and, if there was any possibility of the Court ruling in Mr Cuthbertson's favour, Wanganeen would seek an order for separate trials. Proving the admissions contained in the excluded interrogation evidence would be damaging to Wanganeen's defence.

Mr Brebner, for the Crown, submitted that the relevance of the proposed evidence could not be judged until the defence was disclosed, so that any ruling at this stage would be premature and undesirable. At any rate this was an obvious case for a joint trail and that is what should happen whether it transpired that the interrogation evidence got in or not.

I raised with counsel the question of stating a case at this stage under s350 of the Criminal Law Consolidation Act which now permits the reservation of a question about how a judicial discretion is to be exercised. Mr Brebner was opposed to it. Mr Cuthbertson wanted me to state a case in the event of my not acceding to his submission. Mr Vadasz did not oppose the stating of a case. Mr Barrett's client wanted a case stated although Mr Barrett himself was not so sure about it.

It appears to me that this case has important features that take it outside the familiar question whether a joint trial should be had notwithstanding the proposed admission of prosecution evidence against D1 that is inadmissible against and prejudicial to D2 and would not be admitted against D2 in the event of his being tried separately. There are possible questions of hearsay and relevance. If Wanganeen disputes the Crown evidence directed to showing that he was present in the bar and in the lavatory at or about the time of the assault, then obviously admitting the interrogation evidence would be severely prejudicial to Wanganeen's defence. Hence Mr Barrett's wish for a separate trial should I rule against him on that issue. Mr Cuthbertson and Mr Vadasz want a separate trial if the evidence does not get in, because they say that it would be evidence supportive of their clients' case (whether Wanganeen is being tried with them or not) and they do not want to go to the jury without it.

It seems to me that, leaving the interrogation issue aside, the indicators here pointed very strongly towards a joint trial. If the accused are tried separately the Crown will be severely prejudiced. On the other hand, proof of the admissions made in the excluded interrogation could be very damaging to Wanganeen's defence (depending on what that defence is) and, given that a joint trial would run for several weeks - the Crown proposes to call more than seventy witnesses -, there is much to be said for having an authoritative ruling on the issue before the trial begins, even if there is possibly a degree of contingency about it.

I therefore reserve the following questions for consideration and determination by the Full Court on issues relevant to the trial of the accused -

"1. (a) So far as one can judge, from the committal papers and the voir dire (including my ruling) and the submissions of counsel, would the excluded interrogation evidence be admissible, and should I admit it, in a joint trial, either through cross-examination of Detective Williams or Detective Spencer or by way of cross-examination of the accused Wanganeen about it at the instance of the accused Smith (or the accused Love)? (b) If so, for what purpose or purposes should it be admitted? (c) If such evidence is admitted, should the jury be told that they should not place any weight on it in considering the prosecution case against Wanganeen and, if so, should they be told the reason for that?

2. Should I indicate now, with respect to the projected joint trial, that, if the Crown case takes its expected course, counsel for the accused Smith will be permitted to ask one or other of the investigating detectives, when he gives evidence for the Crown, to give in evidence the questions and answers that constitute the excluded interrogation?

3. Should I grant the (contingent) applications for separate trials?"

Question 1

Counsel for Smith submitted that the excluded interrogation is relevant to Smith's case. Reference was made to a number of lies evidencing consciousness of guilt in Wanganeen. Those particularised included lies as to Wanganeen's presence in the Tavern bar. That allegation can be derived from the statement ruled admissible in the prosecution's case. It is not dependent upon the proof of the excluded interrogation. The same may be said of a further suggestion that the excluded interrogation contained lies as to how blood got to be transferred on to Wanganeen. A third point made, was that the excluded interrogation was relevant to Smith's case because of lies as to the false accusation of Hunter by Wanganeen, as a participant in the crime. Again, the version of events deposed to by Wanganeen in the excluded statement, apart from the admission, may be consistent with the version of events given in the statement not excluded by the trial judge. It is not open to this Court or the co-accused to predict precisely what Wanganeen's case at trial will be. It is not appropriate to answer any questions now upon any assumption as to what the case of a particular accused will be at trial. Nothing has been made plain to the court as to what the particular case of any accused will be at trial apart from the apparent intention of the other two to inculpate Wanganeen.

A further submission as to the relevance of the excluded interrogation is that Smith and Love are entitled to introduce evidence of statements then made as proof of the truth of what it asserts, namely that Wanganeen was in the Tavern bar at about the relevant time and by implication, that he was not in company with the co-accused. It was submitted that an excluded interrogation is admissible at the behest of a co-accused notwithstanding that it has been excluded from the prosecution's case.

Smith's counsel submitted that the language of s74E of the Summary OffencesAct 1953, properly construed, did not prevent the use of the excluded statement at the instance of a co-accused. Perry J is of the view that the language of that section precludes admissibility of evidence against Wanganeen, whether as part of the prosecution case or in circumstances where a co-accused seeks to tender evidence of an interview that does not comply with the demands of s74D.

I do not think that s74E should be construed to prevent the use of an excluded statement at the instance of a co-accused if use in a particular way is otherwise authorised by the law. Sections 74C to 74G of the Act were enacted with a number of objectives including that of enhancing the quality and efficiency of police interviewing techniques . There was no obvious intent to exclude the proper use of those statements at the instance of a co-accused in a joint trial. As was said by Mason, and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation :

"there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute."

I think it improbable that Parliament intended to have these provisions apply to any situation other than the use of such a statement at the instance of the prosecution. I decline to interpret s74E in the way Perry J does. The interpretation I prefer "more closely conforms to the legislative intent discernible from other provisions" in the legislative scheme.

In my judgment, authority requires the trial judge to forbid the use of Wanganeen's excluded statement to police to prove the truth of what was then asserted. Equally, the excluded statement cannot be relied upon to establish a lie against Wanganeen because the truth of what was asserted is sought to be proved in order to establish the alleged lie.

The decision of the House of Lords in R v Myers was relied upon. Two defendants went to trial charged with murder in one count on the same indictment. The circumstances were such that the murder could have been committed by only one person. The case for each accused was that the other was solely to blame for the murder. The prosecution did not lead in evidence certain statements alleged to be made by the appellant to police officers shortly after her arrest. In these statements she admitted that it was she who stabbed the deceased. The statements were not relied upon by the prosecution because they had been obtained in breach of a Code of Practice. However, they were disclosed to the co-accused. His counsel sought to lead evidence of the statements from the police officers on the ground that they were relevant to his client's case and therefore admissible as part of his defence. The trial judge was found to have correctly decided to admit the statements, saying that they could be elicited either by way of cross-examination of the police officers or by calling the police officers as part of that accused's case. In the Court of Appeal (Criminal Division), the evidence of the statement conceded to be inadmissible as evidence for the prosecution was held nonetheless admissible at the instigation of the co-accused in support of his defence. The evidence was relevant and was said not to breach the hearsay rule as it was said to be a confession by a party to the proceedings. The Court of Appeal also found the admissions to be voluntary, non-compliance with the Code of Practice not affecting the matter so far as the co-accused was concerned. In his speech, Lord Slynn referred to earlier decisions of the Court of Appeal, R v Beckford and Daley and R v Campbell and Williams . In Beckford the trial judge was held to have correctly refused cross-examination of police witnesses about a confession made by the co-accused in an interview held inadmissible against that accused because of breach of the Code of Practice. The trial judge held that the matter could only be introduced by cross-examination of the other accused if he were to give evidence. The Court of Appeal's view was that to have allowed the matter to be put to police officers would have been to create a new exception to the hearsay rule.

In R v Campbell and Williams, the hearsay rule question did not arise directly as the evidence in question was a tape recording of a conversation in which Campbell implicated himself and Williams in the crime but supported the defence of a third defendant. That statement was not led by the prosecution as it was not aware of it. The trial judge was held to have correctly allowed evidence to be led on the ground that it was an admission against Campbell and not evidence against Williams. An exception to the hearsay rule was identified in Campbell and Williams but not in Beckford. The approach in Campbell and Williams was adopted by the Court of Appeal and approved by the House of Lords. I doubt that there is such an exception. Such an exception is not acknowledged by the High Court.

In the Court of Appeal in Myers , Russell LJ said:-

"The evidence, however elicited, was relevant to the defence, and in our view did not offend any rule of hearsay because what the appellant said amounted to a confession made by a party to the proceedings (see for example Cross and Tapper on Evidence, (8th Ed (1995) p315). It is to be contrasted with an admission made by a person not a party to the proceedings who is not called to give evidence. Such a statement is hearsay on the authority of Blastland ."

It should be noticed that the reference given to Cross and Tapper is to a passage dealing with the evidential value of previous inconsistent statements and not exceptions to the rule against hearsay. The case cited in the only sentence referable to the statement by Lord Justice Russell is Vocisano v Vocisano . That is not a case which considered exceptions to the hearsay rule. Rather it dealt with inconsistent statements. Ratten vThe Queen was referred to in connection with an argument that a statement was inadmissible as part of a res gestae. Ratten itself involved a statement not tendered as evidence of the truth of things said.

In Bannon v The Queen , Dawson, Toohey and Gummow JJ said that there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or by a third party. Their Honours gave as examples for that proposition two decisions of this Court, In Re van Beelen and R v Szach . Neither of these two cases involved co-accused. However, the third case cited with approval, Wade v Gilroy was a case involving a third party. One of three parties to contempt proceedings before the Family Court was held not entitled to rely on admissions by another party to those proceedings.

Bannon itself was a case of persons jointly tried. In statements to two people, one accused admitted her guilt. Those statements were consistent with the guilt of the co-accused but that co-accused's counsel relied upon the statements exculpating him because they arguably implied that the co-accused had acted alone. The trial judge's direction to the jury was that the woman's out-of-court statements were not evidence in the co-accused's trial and could not be used against him. No direction was made about the exculpatory use that could be made of the statements made by the co-accused. Both being convicted of murder, the High Court held that the statements were inadmissible in exculpation of the co-accused because they were insufficiently reliable and probative of his innocence to satisfy an exception to the hearsay rule even if an exception were to be recognised. The exception then sought to be recognised was not that identified by Russell LJ in Myers.

In my view, even though counsel in Bannon conceded none of the exceptions to the hearsay rule recognised by the courts of Australia allowed evidence of the co-accused's out-of-court statements to be used as evidence in the other's favour, the High Court has not accepted that the law is otherwise and in the passage identified, three justices, with whom Justice Deane agreed, have confirmed an authoritative position which leaves the trial judge in this case with no alternative but to reject the submission made that the excluded statement is admissible at the instance of the co-accused as evidence of the truth that Wanganeen was at the Tavern. The narrow approach in Beckford, not that in Campbell and Williams finds favour in the High Court That apart, it must be noticed that, in his speech in R v Myers, Lord Hope was not disposed to answer the question raised for consideration by the House of Lords nor endorse absolutely a proposition that cross-examination would always be allowed when a confession was excluded against the prosecution. His Lordship was troubled by the fact referred to by Hobhouse J in Reg v Campbell and Williams that a co-accused should not be in a better position than the prosecution in relation to proof of confessions ruled inadmissible where the evidence was excluded because of some oppression of the person said to have made a confession. I reject the arguments advanced by counsel for requiring the trial judge to pursue the approach in Myers or that in other jurisdictions where statements against penal interest are held to be exceptions to the hearsay rule. A statement said to be against penal interest is not recognised as an exception to the hearsay rule by this Court .

It was further submitted before this Court, though not to the trial judge, that even if the transcript of interview was not otherwise admissible it was admissible pursuant to ss45A and 45B of the Evidence Act 1929.

That argument must be rejected. Whatever else may have been said in other cases, the finding of unfairness by the trial judge, the rule against hearsay and the real purpose of those provisions make such an argument untenable. As Bray CJ put it in O'Leary v Lamb , those provisions are not to make admissible that which would be inadmissible. The section may apply should proof of an inconsistent statement become a relevant issue in the trial.

I would answer the first question by saying that the excluded interrogation evidence is not admissible through cross-examination of police officers during the prosecution case to prove the truth of any asserted fact. It or part of it may be admissible as going to the credit of Wanganeen should his evidence at the trial be inconsistent with that statement or parts of it. If such evidence was admitted the jury should be told not to place any weight on it in considering the prosecution case against Wanganeen and the reasons for that.

The relevance of some things said in the excluded interview justifying attempts to introduce them in evidence on behalf of an accused seeking to inculpate another may permit some portions of that interview to be disclosed at particular stages in any joint trial. I do not think that this Court can deal with those possibilities absent disclosure of precisely what each accused may allege or properly introduce in his trial. Suffice to say that the answers now given do not exclude the possibility that some parts of the excluded interview could be relied upon, not as evidence of the truth of what is asserted but, consistent with principles reviewed in the authorities, as evidence of real relevance to a particular, clearly disclosed answer to the charge. Even then, a judicial discretion to exclude evidence otherwise admissible may arise .

Question 2

The second question should be answered in the negative against what has so far been disclosed here and before the trial judge.

It is not appropriate to canvass all manner of possibilities at this stage where the answers of the defendants to the charge are far from specific and clear. Things said to police could be introduced in to the trial given certain circumstances, for example the proper application of ss18 and 29 of the Evidence Act.

Question 3

Against the answers given, I would answer this question in the negative also.

When accused are charged with committing a crime jointly prima facie there should be a joint trial. As the trial judge acknowledged, to order separate trials could prejudice the Crown case. It must be assumed that this is a case where each accused denies guilt. It is not entirely clear that each accused will seek to cast blame on to the others. Nonetheless, the interests of justice demand that a jury should have the whole picture presented. In the present circumstances a miscarriage of justice by reason of any improper prejudice to an accused is not made out

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDMENT 1. South Australian Parliamentary Debates, 7 June 1995, at 2125 2. (1981) 147 CLR 287 3. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation
(1981) 147 CLR 287 at 320 4. (1998) AC 124 5. (1991) Crim LR 833 6. (1993) Crim LR 448 7. (1996) 2 Crim App R 335 at 341 8. (Reg v Blastland) [1986] AC
41 9. (1974) 130 CLR 267 10. [1972] AC 378 11. (1995) 185 CLR 1 at 22 12.
(1974) 9 SASR 163 13. (1980) 23 SASR 504 14. (1986) 83 FLR 14 15. See Bannon v The Queen (1995) 185 CLR 1 at 23 16. In re van Beelen (1974)9 SASR 163 at 206-207, 209 and 232 17. (1973) 7 SASR 159 at 198 18. R v Darrington & McGauley [1980] VR 353 at 384 and 385 19. See Webb v The Queen (1994) 81 CLR
41 at 89 and R v Collie, Kranz and Lovegrove (1991) 56 CLR 302 at 307- 311 and the principles there re-stated from R v Harbach (1973) 6 SASR 427 at 433 and R v Glover (1987) 46 SASR 310 at 312.

PERRY J

The relevant factual circumstances are summarised by the learned trial Judge in his reservation of the questions for the determination of this Court. They are set out in the judgment of Prior J.

Following a voir dire hearing conducted by the learned trial Judge, parts of Wanganeen's police interrogation to which objection was taken were held by him to be inadmissible by reason of s74E of the Summary Offences Act 1953.

If it was reasonably practicable to do so, the police were obliged to record their interrogation of Wanganeen on videotape. A requirement to that effect is imposed by s74D. The learned trial Judge held that there was a failure to comply with that requirement.

The learned trial Judge excluded both what was said off the videotape recording and part of what was videotaped. But that part of the videotape which was excluded was only a dubbing onto the videotape of the preceding conversation taken off the record. I have no hesitation in accepting that argument that in those circumstances the non-compliance taints both the unrecorded off the record conversation and its formal repetition onto the videotape. Were that not to be so, investigating officers could make nonsense of the section.

In such circumstances, the investigating police officer could not be said to have complied with s74D in dubbing onto the videotape a repetition of the unlawfully obtained off-record interview or discussion.

Another way of reaching the same result is to regard s74D(1)(a) which speaks of an obligation "if it is reasonably practical to record the interview on videotape ..." as applying to the whole of the interview, thus invoking the provisions of s74E(1) rendering the evidence of the interview inadmissible unless the whole of the interview is recorded in accordance with s74D. In those circumstances, the inclusionary discretion which will be seen is conferred by s74E(1)(b), could properly be utilised to render admissible the balance of the recording.

S74E provides, in part:

"(1) In proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible against the defendant unless-

(a) the investigating officer complied with this Division; or

(b) the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer's non-compliance."

(2) ........." (emphasis added)

The Division referred to comprises sections 74C to 74G (inclusive).

The words "inadmissible against the defendant" should be given their ordinary meaning. They preclude admissibility either as part of the prosecution case or in circumstances where a co-accused seeks to tender evidence of such an interrogation, against the defendant .

A comparison may usefully be made with somewhat similar provisions enacted in the United Kingdom.

S76 of the Police and Criminal Evidence Act 1984 (UK) provides in part:

"(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained-

(b) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid." (emphasis added)

That section was discussed by Lord Hope in his judgment in Myers . [1] He observed:

"The primary rule is that in section 76(1), namely that in any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings. If however the prosecution proposes to give in evidence a confession which was or may have been obtained by oppression, or in consequence of anything said or done which was likely to render it unreliable, and it is unable to prove the contrary, the court is required by section 76(2) not to allow the confession to be given in evidence.

That subsection does not refer to the position of a co-defendant who might wish to lead the same evidence. But it is hard to see why a co-defendant should be in a better position than the Crown if the confession was obtained in such circumstances ." (emphasis added)

Lord Hope goes on to refer to s78 of the UK Act, pursuant to which the court may refuse to admit evidence "on which the prosecution proposes to rely" if it appears to the court that in all the circumstances it would be unfair to do so.

As to that section, Lord Hope observed:

"Section 78 of the Act of 1984, on the other hand, is a provision of a different character. This is the provision under which, as Mr Harman for the Crown pointed out, the trial judge in this case would be likely to have held that the statements to the police ought not to be admitted in evidence if the prosecution had sought to lead that evidence. But once counsel for the co-defendant had made it clear that he wished to lead that evidence from the police officers, the trial judge was faced with a situation to which section 78 makes no reference. That section refers only to evidence on which the prosecution proposes to rely . It does not confer a discretion on the trial judge to exclude evidence of the kind which it describes on which a co-defendant wishes to rely." (emphasis added)

In fact, both s76 and s78 of the UK Act relate to evidence sought to be used by the prosecution; s76(2) applying "where the prosecution proposes to give in evidence" a confession made by an accused person, and s78 applying to evidence "on which the prosecution proposes to rely".

Those provisions are to be contrasted with s74E of the South Australian Act, which provides that where there is a relevant non-compliance, the evidence is "inadmissible against the defendant"

S74D of the Summary Offences Act was inserted into the Act at a time when there was much concern about so-called police "verbals". It is one of a number of provisions designed to ensure, so far as is practicable, that the evidence of statements made to a police officer which is sought to be used in a subsequent prosecution, is reliable.

It must be accepted that items of evidence are often adduced during the course of a joint trial, which may be relevant and admissible against one accused but not the other. In such a case, the law assumes that an appropriate direction to the jury will be sufficient to ensure that they do not take the evidence into account against the co-accused. [2] In such circumstances, the evidence remains inadmissible against the co-accused.

Bearing that in mind, Mr Cuthbertson contended that the evidence which he seeks to adduce in the course of his client's case at the joint trial would, within the meaning of s74E(1) be and remain "inadmissible against the defendant", that is, against Wanganeen.

But the very first argument put by Mr Cutherbertson on behalf of Smith was that the excluded interrogation is relevant to the case of Smith "as lies evidencing consciousness of guilt in Wanganeen". [3]

In order to consider the implications of that argument, it is necessary to have regard to the nature of the suggested lie.

In the part of Wanganeen's statement to the police which has not been excluded, Wanganeen denies being in the Tavern bar. He suggests in that part of the interview that blood on him as a result of the fight between him and other persons on the ramp forming part of the underpass between the central railway station and the Tavern bar.

If the excluded part of the interrogation was to be accepted as the truth, it would amount to an admission that Wanganeen was in fact in the Tavern bar at about the relevant time, which in turn would tend to suggest that the remaining part of the statement was a lie. In effect, Mr Cuthbertson wishes to be in a position to put to the jury that the relevant part of the statement was a lie, and that it was made out of a consciousness of guilt accompanied by a desire to conceal the truth.

Lies told out of consciousness of guilt go to the question of the credit of the author of the lies, and are also admissible against him or her as part of the body of evidence "which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted". [4] So that the telling of lies out of a consciousness of guilt by a co-accused, in this case Wanganeen, may be probative of his guilt as well as going to his credit as a witness, should he give evidence.

If used as going to Wanganeen's credit, it would be right to conclude that it was admitted against Wanganeen, albeit on that issue only. The same result would obtain if Smith was to seek to refer to an excluded statement during the course of cross-examination of Wanganeen as evidence of a prior inconsistent statement. In both of those circumstances, there would be a failure to give effect to s74E(1), in that the evidence would be admitted against Wanganeen.

I do not overlook the fact that possible utilisation of otherwise inadmissible evidence by a co-accused is a matter which might conceivably be taken into account in the exercise of the discretion conferred by s74E(1)(b). It does not appear that the point was argued in this case, although the learned trial judge did consider in general terms whether the interests of justice required the admission of the evidence pursuant to the discretion conferred by that subsection.

In my opinion, on the facts of this case, it would not be right to take the unusual step of exercising the discretion under s74E(1)(b) in favour of a co-accused when its exercise had been refused against the prosecution, and the admission of the evidence is objected to by the accused from whom the evidence has been obtained. On the other hand, an example of a situation where it might be proper to exercise the discretion to admit the evidence, despite non-compliance with a requirement of the Division, is where the accused person the subject of the non-compliance wishes the evidence to be led.

Furthermore, whether used as going to Wanganeen's credit or as evidence going to proof of Wanganeen's guilt, in order to establish the making of a lie, the jury would have to accept the truth of the excluded statement, albeit by applying a lesser standard of proof than proof beyond reasonable doubt. [5] In my opinion, to invite the jury to accept the excluded statement as true, even for the limited purpose of establishing that the other statement is a lie, would breach the hearsay rule.

The same difficulty lies in the path of acceptance of Mr Cuthbertson's next submission, namely, that the excluded part of the interrogation should simply be admitted as part of Smith's case as evidence of the "proof of the truth of what it asserts, namely, that Wanganeen was in the Tavern at about the relevant time and that he was not in company with Smith". [6]

Authority binding on this Court does not allow for an exception to the hearsay rule which would, in either of those circumstances, avail Smith.

A convenient starting point is the High Court in Bannon v R . [7] That case involved a joint trial of two accused for the murder of two other persons. The victims were killed by stabbing. There was no evidence identifying which of the accused was responsible for the stabbing. The Crown case was that one or other was responsible, and that the other either acted in concert with or aided and abetted the stabber. Both of the accused mounted cut-throat defences and asserted that the other was responsible for the stabbing, and in doing so, acted alone.

One of the accused made out of court statements to two witnesses who were called to give evidence for the prosecution. The Crown relied on their evidence as evidence of the guilt of the author of the statements. The latter, however, did not give evidence.

The other accused contended that some part at least of the out of court statements were exculpatory of him, and sought to rely on them as part of his defence. The trial Judge ruled that the statements could not be regarded as evidence in the latter's trial. But while the trial Judge directed the jury that the statements could not be used against the co-accused, he gave no express direction about their use as being exculpatory of him.

The case lends no support for the proposition that the law in Australia recognises a common law exception to the hearsay rule which would render admissible the evidence sought to be adduced by the accused Smith in this case. It is true that certain exceptions recognised in other jurisdictions, which for convenience I will describe as the penal interest exception, and the "necessary and reliable" exception, were discussed in the judgments. Likewise, reference was made to the recognition of some flexibility in the application of the hearsay rule in certain circumstances, said to have been endorsed in Walton , [8] Benz [9] and Pollitt . [10]

But I see nothing in any of the judgments in Bannon to support the view that the common law in Australia recognises an exception of the kind contended for by counsel for Smith in this case. The discussion in the judgments in Bannon of the applicability of any "general reliability" exception to the hearsay rule was clearly on the basis that even if any such exception existed, its requirements were not met in that case. But the judgments fall short of accepting that any such exception exists. [11]

In the course of their decision, the Judges of the High Court in Bannon refer with apparent approval to the decision of this Court in Van Beelen [12 That case did not concern the precise issue raised in this appeal, that is, the attempted introduction by an accused of evidence emanating from a co-accused.

Rather, it concerned an attempt by an accused tried alone to introduce in evidence an alleged confession made by a third party who had not been charged. The case is authority for the proposition that in South Australia the common law does not recognise an exception to the hearsay rule in favour of the admissibility of out of court confessions by such third parties. At the same time, the joint judgment of Walters, Wells and Jacobs JJ embodies an emphatic rejection of the proposition that the exception to the hearsay rule which applies in the case of declarations against pecuniary or proprietary interest extends to declarations against penal interest. [13]

A number of cases were referred to by the learned trial Judge in the case stated to this Court.

Mawaz Khan [14] concerned the admissibility of statements made by each of two joint accused in which they sought to set up a joint alibi which, on the Crown case, was false.

After giving a general direction in the customary terms that a statement by an accused person in the absence of the other is not evidence against the other, the learned trial Judge directed the jury in terms that they were entitled to compare the statements. If the jury came to the conclusion that the statements were false, they could be accepted as evidence that the accused had co-operated after the crime and jointly concocted the alibi out of a sense of guilt.

The direction in those terms was upheld by the Privy Council on the footing that no breach of the hearsay rule was involved, as the jury was invited to use the evidence of one accused against the other only if they found that it was false and that it was an expression of a joint fabrication. That case is an example of statements that would otherwise be caught by the hearsay rule being admitted in evidence, where they are not tendered as truth of their contents.

Two other cases referred to involve a similar point, that is, hearsay evidence admitted on a basis other than as proof of its truth. They are Chin [15] and Anic and Ors . [16]

Webb and Hay [17] does not carry the matter any further for present purposes, as the relevant part of the judgment of the Full Court in that case dealt with another point, that is, cross-examination by counsel for one accused of the co-accused as to her propensity for violence.

O'Boyle [18] concerned a decision of the Court of Appeal in a case involving a ruling by the trial Judge permitting cross-examination by counsel for one accused or a co-accused as to the latter's statement made out of court (indeed, it was made out of the jurisdiction) which was said to amount to a confession.

The Court of Appeal considered that the decision of the learned trial Judge to permit the cross-examination was correct in view of the decision of the Privy Council in Lui Mei Lin [19] , but that in the unusual circumstances of that case (circumstances which do not apply to this case), the learned trial Judge should have acceded to an application by the appellant for separate trials.

It is in the decision of the Privy Council in Lui Mei Lin (supra) and in the recent decision of the House of Lords in Myers [20] that there are judicial pronouncements which give a degree of buoyancy to the arguments advanced on behalf of the accused Smith. Both cases go a long way towards recognising a right on the part of one defendant in a joint trial to cross-examine another defendant or adduce evidence by other means indicating that the other defendant has made an otherwise inadmissible statement out of court said to be of assistance to the defendant seeking to adduce the evidence.

I do not pause to analyse in detail the judgments given in those two cases, or in a number of other decisions, some of them of courts in the United States and Canada, cited in argument which support the accused Smith's contentions. To do so would not advance the matter. This is because the judgments of the High Court in Bannon (supra), properly understood, fall short of endorsing an exception to the hearsay rule of the kind now suggested. Furthermore, the decision in Van Beelen (supra) remains binding on this Court. I note that in Kutny (Court of Criminal Appeal) Duggan, with whom Doyle CJ and Nyland J concurred, held that the facts of that case did not "provide an appropriate occasion on which to reconsider" Van Beelen's case. [21] So that it must be regarded for the time being as definitive of the law in this State.

That is not to say that the problems identified, for example, in the judgment of Deane J in Bannon [22] are not problems which may well justify a reconsideration of the operation of the hearsay rule in the case of joint criminal trials. But that is a question best left to be dealt with by the High Court or the legislature, rather than by an intermediate appellate court.

I agree with Prior J that the argument that ss45a and 45b of the EvidenceAct 1929 afford a means by which Wanganeen's out of court statements now in question might be adduced in evidence at the behest of Smith, should be rejected. Both of the sections are essentially facultative in their operation. They are designed to facilitate proof, rather than to provide grounds of admission of evidence which would otherwise be inadmissible.

In any event, it would arguably be "otherwise contrary to the interests of justice" within the meaning of subs45a(2)(c) and subs45b(3)(c) to allow the use of either section to facilitate the introduction into a criminal trial of hearsay evidence, against the objection of the accused most directly affected by it.

Be that as it may, whatever view may be taken as to the scope of the Evidence Act provisions, they could not properly be applied so as to defeat the operation of s74E of the Summary Offences Act .

As to the question of separate trials, I agree with Prior J that this is not a proper case for separate trials.

Before parting with the matter, I mention that there are difficulties associated with the process of giving a ruling at this stage on the questions posed when neither the accused Smith, nor, for that matter, the accused Love, who has adopted the arguments put by the accused Smith, has indicated the nature of the defence which they propose to put forward. But that circumstance does not dissuade me from the view that it is proper to answer the questions. The conclusions which I have reached hold good, irrespective of the relevance of the excluded statements to the defence of either of the other accused.

However, I would emphasise that the jurisdiction under s350 of the CriminalLaw Consolidation Act 1935 to hear and determine questions of law, or questions arising as to the exercise of a judicial discretion, ahead of the trial, should be exercised sparingly. But in my view, this is a case in which it is proper that it be invoked.

I would answer the questions as follows.

TABLE

1.
(a)
So far as one can judge, from the committal papers and the voir dire (including my ruling) and the submissions of counsel, would the excluded interrogation evidence be admissible, and should I admit it, in a joint trial, either through cross-examination of Detective Williams or Detective Spencer or by way of cross-examination of the accused Wanganeen about it at the instance of the accused Smith (or the accused Love)?
No, it is not admissible and it should not be admitted in any of the situations postulated.
(b)
If so, for what purpose or purposes should it be admitted?
Does not arise.
(c)
If such evidence is admitted, should the jury be told that they should not place any weight on it in considering the prosecution case against Wanganeen and, if so, should they be hold the reason for that?
Does not arise.
2.
Should I indicate now, with respect to the projected joint trial, that, if the Crown case takes its expected course, counsel for the accused Smith will be permitted to ask one or other of the investigating detectives, when he give evidence for the Crown, to give in evidence the questions and answers that constitute the excluded interrogation?
No.
3.
Should I grant the (contingent) applications for separate trials?
No.
WILLIAMS J:

The questions now reserved to this Court have arisen in the course of a hearing upon the voir dire for the purposes of a criminal trial.

1. The status of an interlocutory decision in a criminal trial

The answers to the questions upon the present reference must necessarily be provisional. That result is the product of the amendment to the Criminal LawConsolidation Act 1935 in terms of the present s350 which permits questions (including those involving the exercise of discretion) to be brought before the Court of Criminal Appeal before crucial facts have been finally determined.

Whilst in the special circumstances of this case this Court ought to provide some guidance to the trial Judge for the assistance of counsel, a warning should be given as to the status of any opinion which is now expressed upon questions where the position may change as the trial proceeds. Moreover, this Court's answers to the questions referred will not relieve the trial Judge from the obligation to look at the issues afresh as the case develops.

In R v Saunders (1994) 72 A Crim R 347 the members of the NSW Court of Criminal Appeal concurred in a statement by Smart J at 353-354:

"An order for a separate trial is an interlocutory order. Such an order might be correctly refused prior to or at the start of a trial but material may emerge during a joint trial which makes it unjust to proceed other than by ordering a separate trial.

It has long been the law in civil proceedings that an interlocutory order may be varied or rescinded if it becomes inappropriate due to a change in circumstances or other good reason: Hutchison v Nominal Defendant [1972] 1 NSWLR 443; Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 and the other cases cited at p2855, par 40.9.2 of the Supreme Court Practice, noting RD Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 at 392-393 where it was pointed out that the court has an overriding power to control its own proceedings. The position is no different in the criminal law. In the course of preparation for a trial and during the trial the position can change considerably. Facts believed to be true may be shown to be false and new facts may emerge. The situation may be very fluid. Interlocutory judgments and orders are designed, inter alia, to facilitate the final determination. They are not immutable . The law is flexible enough to adjust its procedures, judgments and orders to the case in hand.

In Wright (1990) 90 Cr App R 325 at 338-340 the English Court of Appeal dealt with a case where one judge (not the trial Judge) on the pre-trial review (described as a valuable practice which results from judicial administrative action, not from any statute or rule of court) refused to order separate trials . Further application for severance was made at the trial to the trial Judge who refused to look at the matter himself. He regarded the decision of the first judge as binding. It was held that he had erred. Mustill LJ said (at 339):

"...if the question had arisen during a trial before a judge who had already ruled at the outset of the trial, he would not have been formally bound to maintain his original ruling. He could have reversed it, if he felt that the interests of justice so demanded, with whatever consequences as to the future conduct of the trial the circumstance might dictate. Equally he could have refused to entertain a renewed submission on the question, unless satisfied that the circumstances governing his original ruling had not materially altered . It would not be his duty to listen to the same arguments on the same facts over and over again. The position would, as it seems to us, be the same if his prior ruling had been given just before rather than at the trial . ... In our opinion, the decision on severance by the first judge does not bind the second; conversely, the latter is not obliged to hear the same point argued again if nothing material has changed. If however it is asserted that there has been a change, then he should permit the happening of the change to be canvassed, and if satisfied that there really is something new which might affect the justice of maintaining the original order, he should look at the matter for himself .

Although the New South Wales legislation and rules differ somewhat from those in England the passages quoted indicate the correct approach to be taken in New South Wales where there is a second or subsequent application for joint or separate trials." (Emphasis added).

In R v Williams (1976) 14 SASR 1 at 2 Wells J noted that the regular method of dealing with objections to evidence is to wait until the evidence is about to be given but he acknowledged the need to devise a procedure to meet special circumstances. His Honour said:

"It must never be forgotten that a hearing on the voir dire before the Crown opening - commonly referred to as a trial within a trial - stands apart from the usual and regular conduct of a criminal trial, in general, and the mode of dealing with objections to evidence, in particular.

The regular method of dealing with objections is for counsel who intends to object to wait until an offending question (or answer) is asked (or given), or is imminent, and to make his objection accordingly. There are obvious reasons why, speaking generally, that is the most practical and effective way to raise, debate, and determine disputes over admissibility. In almost every case, the relevance of a disputed item of evidence to a fact in issue or to credibility can be decided only by having regard to all the evidence already received and the structures of the forensic issues that have formed themselves up to that point; for that evidence and those structures anticipation of either or both is a poor substitute .

But experience has shown that occasions may arise when an item of evidence sought to be excluded is of such importance, and occupies such a prominent place in relation to the whole, that a miscarriage of justice could be caused by allowing the hearing (including the opening) to proceed in the usual way to the point where the objection is taken for the first time. For the court may then exclude the evidence, and everything that has gone before that refers or relates to it or is based upon it will have been said or done or shown without proper foundation or justification. In these days it is, of course, accepted that, generally speaking, juries can be relied upon to exclude from their deliberations items of evidence that have wrongly, though inadvertently, been placed before them and that they have been directed to put from their minds, or to make a proper use of an item of evidence that is susceptible also of an improper use; but where evidence, if admitted, would have a powerful, or could have a close to decisive, effect upon the outcome of the trial, the voir dire procedure has been found to be conducive to a smooth hearing, and to avoid the risk of a miscarriage of justice caused by the jury's inability to put an offending item of evidence out of their minds."

It is understandable in this case (involving some seventy witnesses, legal points of difficulty and three accused with divergent interests) that the present reference has been pursued. However, as a general practice such a reference should not be encouraged in circumstances where only a provisional answer can be given.

2. The Questions Reserved

The point arises as to whether evidence of out of court statements made by the co-accused Wanganeen and excluded as evidence against him are admissible at the behest of Smith. Wanganeen's statements show that he was present in the vicinity of the alleged murder site at a relevant time and in answering police questions told a lie when he at first denied that fact. The excluded statements tend to implicate Wanganeen in the incident but they appear to do nothing explicitly to exculpate Smith from participation in the crime in the manner alleged by the Crown.

In my opinion the recent review of legal principle in Robinson v R (1996) 15 WAR 191 is sufficient to dispose of the present reference. The decision by the Western Australian Court of Criminal Appeal explains and applies the reasoning in Bannon v R (1995) 185 CLR 1. In Robinson a statement of the nature now in question was treated as evidence to which the hearsay rule applied so that the statement of an accused made out of court is not to be received as evidence for or against another accused.

Robinson also reaffirmed the principle that a declaration against pecuniary or proprietary interest (as an exception to the hearsay rule) will only be allowed when the maker of the statement has since died; the principle has not been extended in Australia to include declarations against penal interest; the decision in Sussex Peerage Case (1844) 11 CL & F85 continues to be the law. (see also R e Van Beelan (1974) 9 SASR 163 at 206-209).

In my opinion upon the material now available separate trials should not be ordered; that position may change. I agree with the respective comments of Prior J and Perry J in this behalf.

As to the possibility that Wanganeen might be cross-examined by Smith's counsel with respect to the excluded statement, it seems to me that circumstances could arise which would justify the statement being put to Wanganeen - in particular so as to bear upon his credit. I agree with the comments of Prior J upon this topic, but whilst the situation remains so fluid in terms of the defence cases I prefer to say nothing more at this stage.

The Court heard argument as to the effect of s74E(1) of the SummaryOffences Act 1953. In my view nothing in s74E stands in the way of Wanganeen's co-accused making use of Wanganeen's statement consistent with the principles which I have discussed. I agree with the construction of s74E which commends itself to Prior J for the reasons which he has given.

I agree with the other members of this Court that the provisions of ss45A and 45B of the Evidence Act 1929 (which facilitate manner of proof) do not operate to render admissible the contents of the transcript of interview with Wanganeen.

In Harbach Wells J summed up and took a verdict with respect to one accused before summing up against the co-accused. Whilst this course was described as unusual the Court of Criminal Appeal noted precedents for it (see R v Harbach
(1973) 6 SASR 427 at 432-434). My citation of this isolated precedent is for the sake of completeness; I have no expectation that the trial Judge will have any need to follow that course. However the application of the principles discussed in Harbach demonstrates how justice may be achieved at a joint trial by appropriate directions from the Judge to the jury.

3. Answers to the Questions

I agree with the answers proposed by Prior J.

These answers will provide guidance in a fluid situation whilst preserving the trial Judge's discretion as abovementioned.

FOOTNOTES:

[1] (1998) AC 124 at 144-145; (1977) 3 WLR 552 at 570-571.

[2] See R v Harbach (1973) 6 SASR 427 per Bray CJ, Mitchell and Sangster JJ at 433.

[3] Written outline of argument, para 1.1.

[4] Edwards v R (1993) 117 ALR 600 per Deane, Dawson and Gaudron JJ at 612.

[5] Edwards ibid.

[6] Written submissions, para 1.3.

[7] (1995) 185 CLR 1.

[8] (1989) 166 CLR 283 per Mason J at 293..

[9] (1989) 168 CLR 110 per McHugh and Gaudron JJ at 143.

[10] (1992) 174 CLR 558.

[11] This view of the case accords with that expressed by Owen J in R v John St Clair Golightly (Supreme Court of New South Wales, 3 February 1997) (unreported).

[12] (1974) 9 SASR 163.

[13] Ibid at 206.

[14] [1976] 1 AC 454.

[15] (1985) 157 CLR 671 at 676.

[16 (1993) 61 SASR 223.

[17] (1992) 59 SASR 563.

[18] (1991) 92 Cr App R 202.

[19] (1988) 88 Cr App R 296.

[20] (1998) AC 124; [1997] 3 WLR 552.

[21] See Judgment No S5200, 3 August 1995, unreported.

[22] (1995) 185 CLR at 13- 15.