Walton v The Queen

[1988] HCATrans 185

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A42 of 1987

B e t w e e n -

PAUL ANDREW WALTON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J

DEANE J

DAWSON J

TOOHEY J

Walton

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ONTHURSDAY,25 AUGUST 1988, AT 10.17 AM

Copyright in the High Court of Australia

AlT 2/1/VH 1 25/8/88

MR B.M. DEBELLE, QC: If the Court pleases, I appear with

my friend, MR D. BERMAN, for the applicant.

(instructed·-by White Berman & Co.)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with MISS W. ABRAHAM,

for the respondent. (instructed by the Crown Solicitor

for South Australia)

MR DEBELLE:  I have some summaries of the submission to hand

to your Honours.

MASON CJ:  Thank you. Yes.

MR DEBELLE:  If the Court pleases, the applicant complains

that the Court of Criminal Appeal has, in the first

place, misapplied the principles in SUBRAMANIAM V

PUBLIC PROSECUTOR; secondly, has incorrectly

stated the rules as to the circumstances in which

statements of intention can be received in a

criminal prosecution, and I would underline the

words, "in a criminal prosecution," as to distinguish

it from a civil litigation in respect of which it

would be my contention that there are differences. those cases such as WAINWRIGHT and POOK, to which reference is made in paragraph 1 of the written

submissions, as we are told that evidence of a

statement of intention is, in fact, inadmissible.

There are, in fact, we contend, Your Honours, two questions of importance which do merit the

consideration of this Court. Firstly, as to what

extent, if at all, the decision in SUBRUMANIAM

permits the admission of evidence of a statement

made by a witness as to what he has heard as to a

declaration of an intention by a victim. As is

noted in the summary, in two decisions in the

1870s in England, WAINWRIGHT and POOK, such statements

have been held to be inadmissible, yet those decisions

were not addressed by the Court of Criminal Appeal
when this matter was determined.	I am not even sure -

I was not counsel in the matter before the Criminal

Appeal - I understand - I am not sure whether

the decisions were, in fact, cited to Their Honours.

The other point which we say merits the consideration

of the Court is to what extent, if at all, statements

made in the presence of a witness by a person speaking

on the telephone are admissible. There is no authority

directly bearing upon this point, but we nevertheless

submit that the evidence is inadmissible in the

circumstances of this case. Might I then direct

my submissions first to the question of the extent

to which, if at all, SUBRUMANIAM permits the evidence

which was admitted in this case to be admitted?

Your Honours will have noted that Chief Justice King

divided the contentious evidence into three categories

and that is a summary which we, with respect, happily

AlT2/2/VH	2	25/8/88
Walton

accept. Might I take Your Honours to it straight

away? Your Honours will recall - this is at page 917

of the book 4 - I think it will only be necessary to

refer to two books at the very most, Your Honours -

book 1 and book 4.	Most of the relevant material is
in book 4.

WILSON J: It is perhaps a pity that it was thought necessary to

produce such a voluminous amount of material.

MASON CJ: Just as a matter of interest, why was it thought

necessary to produce so much material, Mr Debelle?

MR DEBELLE:  I am not in a position to answer that question

at all, Your Honour, I am sorry.

DAWSON J: What was that page, Mr Debelle?

MR DEBELLE:  917, Your Honour. His Honour divides the

evidence into three categories towards the bottom

of the page. first:

Statements by the deceased to the various

witnesses that she intended to go to the
Elizabeth Town Centre on the evening of

5th December in order to meet the appellant.

Secondly - the second category:

Words spoken by the deceased and by the

boy Michael on the telephone to the caller

at the other end of the line on the evening

of 4th December.

And the third category:

The statement made by the deceased to the

boy Michael that Daddy was on the other

end of the line and the statement made by

the deceased to Rhonda Bowett that the person

to whom she had spoken on the telephone was

the appellant and that he wanted the deceased

to meet him at the Centre on the following

night.

TOOHEY J:  Mr Debelle, ;does category (1) and (2) as

formulated by the Chief Justice correspond precisely

with your (1) and (2) in your outline?

MR DEBELLE:	Yes, Your Honour. Well, my outline is intended to correspond with the Chief Justice's categories. In the result, the evidence in the third category was held to be inadmissible by the Court and the
ruling as to that appears on page 922:

The statements in the third category were

plainly hearsay.

AlT2/ /VH	3	25/8/88
Walton

MASON CJ:  Do we need to concern ourselves with that?

MR DEBELLE:  No, Your Honour. I just identified that. Then

as to the evidence in the first category, that

evidence is summarized by the Chief Justice at

pages 916 and 917 and before I go to His Honour's

summary, might I just indicate in broad outline

what the position in relation to this matter was?

The Chief Justice states at page 913 that:

The case for the prosecution was based upon the evidence of -

•

one -

Cindy Bragg.

And Cindy Bragg deposed to a plan to murder the

deceased and she says that she co-operated in the

plan with the accused Walton and as the Chief Justice

says, she perhaps encouraged it and central to

her evidence and indeed central to the Crown case

is a statement that she made that:

On the evening of Wednesday, 4th December, the appellant told her that he had arranged to meet the deceased -

the victim -

at the Elizabeth Shopping Centre on -

Thursday 5th December at about 7 o'clock in the

evening. And then she deposed to events which occurred

on that evening. This evidence was denied by

the accused and was denied by him in the witness

box. The effect of his evidence is summarized by

the Chief Justice at page 914 and 915. He, as

one might expect, denies the account by Cindy Bragg;

he denies that there was any arrangement to meet the

deceased and he denies that he met her. He denied

that he had made any telephone call to the deceased to arrange any meeting with her; he denied any	involvement in the death and said that on the night
when it was alleged that the girl was murdered that
he, in fact, stayed at home and indeed answered the telephone call made to the place where he was living.

So, as the case unfolded .there was, in large

part, a simple assertion on oath by Cindy Bragg

that she had heard and been told by the accused of

his plan to murder the girl, Lorraine Croad, and

she may have co-operated with him in that.	That,
on the other hand, is denied by the accused.	You

have basically a case of oath against oath. The

yardstick by which the jury might be able to determine

which of those two accounts should be accepted was

the statements by the four witnesses, whose evidence

is summarized pages 916 and 917.

AlT2/4/VH	4	25/8/88
Walton

WILSON J:  Was there any independent evidence of anonymous

phone calls being made subsequent to the disappearance

of the victim?

MR DEBELLE:  No, Your Honour.

WILSON J: There was not.

MR DEBELLE:  So, as I say, central to the issue is this question:

was there a phone call made to the Lorraine Croad on
4 December to arrange a meeting on the 5th and did

she in fact meet the accused on the 5th, and was the

accused the person who made the telephone call to

arrange the meeting? As I say, the only evidence

by which the two accounts could - or one could seek

to determine the truth of the two accounts - is the

evidence of these witnesses who gave evidence over

objection to statements made by the deceased that

she intended to meet the accused on the evening of

5 December.

The effect of their evidence, as I say, is

summarized at pages 916 and 917. The first witness,

Rhonda Bowett, was a lass of 15 years, and she says

that:

She was at the home of Mr and Mrs Stitt on Wednesday, 4th December 1985.

If Your Honours have a look at the summing-up at page 63, which is page 726 of book 4, Your Honours

will see at about lines 14 and 15 that Rhonda Bowett

was not exactly sure of the day of the week that

the phone call was made. So, with respect,

Chief Justice King's summary is slightly incorrect.

At all events, she was at some time at the home of

Mr and Mrs Stitt. Rhonda Bowett's evidence on this

matter is at pages 91 and 92 and 93 of book 1.	I
go on with the Chief Justice's summary:

The telephone rang and_,

according to Rhonda Bowett -

the deceased answered it and said "Hello,

I was about to call you". There was some

conversation on the phone and the deceased

then called out for her son Michael and

said to him "Michael, daddy's on the phone .....

Michael then spoke on the telephone ..	The
witness heard him say "Rella daddy" and
"Yeah, I've been good".

Michael is a little boy aged 4, Your Honours.

TOOHEY J: Mr Debelle, could I just interrupt you? Does the

evidence of Rhonda Bowett span both questions?

MR DEBELLE: It would seem, Your Honour, to do so, yes.

AlT2/5/VH	5	25/8/88
Walton

TOOHEY J: In other words, it goes as to statements made

by the deceased as to her intention - - -

MR DEBELLE: Intention.

TOOHEY J:  - - - and also as to a conversation that ensued

between her and someone else on the telephone?

MR DEBELLE: That is so, Your Honour, and her evidence also

went into the third category which was held to

be inadmissible.

TOOHEY J:  For the purpose of our concern it spans questions

one and two?

MR DEBELLE: It does.

TOOHEY J:	Yes.
MR DEBELLE:	She then deposes to the boy speaking on the

phone:

For about a minute or a minute and a half -

and heard him say goodbye. Her evidence at pages 91 to 93 discloses that all she heard him say was "Hello, daddy. Yeah, I've been good," and .then,

"Goodbye." She deposes to the deceased resuming

her conversation and talking about the clothes

that she would be wearing. She comes off the

telephone and the deceased says to Rhonda Bowett

that:

The person on the phone was Paul Walton and that he wanted to meet her at the

Centre.

DAWSON J: Well. now, that was excluded, was it not?

MR DEBELLE:  That was excluded as was the statement by her to

her son, "Michael, daddy's on the phone."

DAWSON J: Yes.

MR DEBELLE:  The other three witnesses, that is, Harvey,

Stitt and Nicholas, depose only as to her intentions.

Brian Harvey was 17. He was at the home of

Mr and Mrs Stitt, where the deceased used to live,

on Thursday 5 December - that is the day of the

alleged meeting:

He deposed that the deceased said to him

that "she was going down to catch the bus

she was going to meet Paul at the Centre

and she was going to go to the Kariwara Hotel -

that is a hotel in Elizabeth -

AlT2/6/VH	6	25/8/88
Walton

to talk about Kim -

one of the children -

going to kindergarten." She indicated

that Paul was Paul Walton -

the accused. And Mary Stitt's evidence is to somewhat

similar effect although it recounts a declaration of

intention to meet Paul Walton made on the earlier day,

4 December. According to her:

The deceased said that she had no money and that she was going to buy some presents for

the children at the Elizabeth Town Centre

on the following night. She was -

going -

to meet the appellant at 7 o'clock. On the

following day ..... the deceased, according

to Mrs Stitt, told her that she was going
to meet the appellant at the ..... Town Centre

to buy presents for the children.

And Paul Nicholas's evidence is to somewhat similar effect.

He:

was a friend of the deceased and was on

sexually intimate terms with her.

And he gives evidence that on 4 December he said

she was going to the shopping centre. So there you

have four witnesses deposing to an intent, a statement
of an intention to go to the shopping centre, a.
statement which, with respect, I think it is fair to

categorize as a bare declaration of intention. The

evidence was admitted as evidence to prove her

intention; not to prove to the court that she went
there but to prove her intention. In our respectful

contention, the evidence should not have been admitted.

We say that because the only purpose in calling the

challenged evidence could have been to seek to

established one or more of the three issues which the

Chief Justice identifies at page 918 and which we respectfully adopt; mainly, did the deceased meet

the appellant on the evening of 5 December; did
he arrange the meeting and, thirdly, did he telephone
the deceased on the evening of 4 December?

We say that it is very difficult to resist the conclusion that the staterIEn.ts were led for the pllX!X)Se

of proving that what was said in the statements was

true. In other words, that the evidence was led not

purely to prove the making of the statement only, but
for its testimonial value that what was said in the

statement was true.

AlT2/7/VH	7	25/8/88
Walton

DAWSON J:  Did the trial judge warn the jury against using

these statements for that purpose?

MR DEBELLE:	He did, Your Honour.
DAWSON J:	Yes.
MR DEBEI1E:	I will come to that in a moment and show Your Honour

the warning. But, in our contention, it is very hard

to divorce from the statements made in this particular

case - to divorce from those statements an issue of

truth. Once, in other words, there was any is sue of
truth in the statement, they become testimonial.

Putting it another way, it is admissible for evidence of the fact of the conversation unconcerned with its

contents, to be admitted. But here you have a case where what is said, with respect, is - I am sorry -

the truth of what is said is important.

Now, it all comes back, in our respectful contention,

as to the question and to the yardstick by which one

would test the matter: what was the purpose of leading

the evidence? We say the only purpose of leading the

evidence could be to establish that she in fact did

go to Elizabeth Town Centre in accordance with an

appointment to meet the accused.

DAWSON J: Ultimately, that must be what you are trying to prove,

because ultimately you are trying to prove that the

events which led to the murder originated there, but

cannot the evidence be led for something else? I mean,

the basis of the hearsay rule is that witnesses should

only be called to give evidence as to what they saw

and heard themselves.

MR DEBELLE:	Yes.
DAWSON J:	Now, of course, this evidence comes into that

category. This witness is giving evidence of what

she heard, and what she heard was important because

of the fact of what was said, as well as, perhaps,

fact of the declaration is important itself, and it	the truth of the declaration of intention, but the	does not come within the hearsay rule if you look at
it that way.

MR DEBELLE:  Yes, but it is our contention that the fact of

what was said is important and with that you couple

the next arm of our submission, that is to say, that

evidence of an intention is evidence which is
admitted, in our respectful contention, in carefully

circumscribed exceptions.

DAWSON J: Well, is the intention relevant or is it not?

MR DEBELLE: Well, we say if it is a question of how you

characterize the purpose in calling the evidence - and

we say that you cannot divorce from this statement

an element of - - -

AlT2/8/VH	8	25/8/88
Walton

DAWSON J: Well, no, no, that is not the question. Start

with the first question: is evidence of the -

without looking to see whether it is hearsay or not -

is evidence of the deceased's intention at the

relevant time, relevant?

MR DEBELLE:  It is relevant only if it is permissible to lead the statement of an intention.

DAWSON J:  No, no, that is not the question. I mean, you

might be able to prove it other than by these

statements, but is it a relevant fact of what

intention the deceased had at the time she set out

from the house?

MR DEBELLE: Onecannot deny that - - -

DAWSON J: All right. Well then, one goes from that point to

say well then, any admissible evidence which goes

to establish that fact, namely, her intention,

any evidence which goes to establish that, would be

admissible on the grounds of relevance.

MR DEBELLE:  Yes. We say this evidence is not admissible

because evidence of a statement of a bare intention

DAWSON J: Well now - I am sorry, I do not want to interrupt

you too much - but if you then take the next step,
you have here the deceased's statement, and it
can be looked at in two ways: the fact that she
made that statement may go to show intention.

Of course, you could take the statement and seek to

prove the truth of what she said, but that is another

thing. In other words, this hearsay evidence is

really fairly circumscribed, is it not? Most

statements which are said to be hearsay have two

aspects to them.

MR DEBELLE:	They do.
DAWSON J:	One may be relevant - the statement may be relevant

in itself as a fact. True, it may be relevant to

prove the truth of the assertion.

MR DEBELLE:  But we say the effect of the rule in SUBRAMANIAM

. . ... - if the purpose of leading evidence is to prove both the truth of the statement and the fact of the statement, then we say there was really no

other purpose here, then it is inadmissible. We will

go further and say that even if Your Honours are

against us on that contention, the authorities in

relation to the criminal evidence are that statements

of a bare intention which is a statement made either

without any temporal connection with an event or

does not accompany an event, is inadmissible. In

other words, if one makes a statement as one is seen
walking out the door, that a person is going to do

something and, in a very short period of time an event

AlT2/9/VH	9	25/8/88
Walton

occurs which is consistent with that, the evidence

can be given. But if a person,two or three days

before, says, "I'm going to go to Elizabeth," that

is the kind of evidence which the criminal courts

have historically rejected, because it is the sort

of evidence which, of course - I will start aeain -

because a statement of bare intention, is somat:l;ung ~h is

either so easily changed or where other events may

supervene and prevent the intention from being carried

out, so the courts are naturally reluctant to admit

that kind of evidence.

DEANE J: Is it rejected because it is inadmissible or is it

rejected because its	inadmissible character outweighs
its permissible use?

MR DEBELLE:  I think the answer is the former; it is rejected

because it is inadmissible.

DEANE J: What if, for example, the evidence had been that the

deceased had borrowed somebody's bus ticket to

Elizabeth, where there would be no problem of the hearsay element of that? Would that really ever be inadmissible?

MR DEBELLE:  The witness there is deposing to an event.

(Continued on page 11)

AlT2/10/VH	10	25/8/88
Walton

DEANE J: I am not suggesting it would be admissible. I am

just asking a - - -

MR DEBELLE:  No. I am having some difficulty in answering

Your Honour's question because you have the principle

in SUBRAMANIAM on the one hand. You have the decision

in WAINWRIGHT's case and then POOK Oft the other, and

you have to try and rationalize the position.	Now,
it seems to me that much depends upon (1), the temporal connection between the making of the

statement and a subsequent act. That is to say,

if someone is walking out the door and says, "I'm

going to Elizabeth", that kind of evidence might,

in circumstances, be admitted. If I say the day

before, "I am going to Elizabeth", no. To take

Your Honour's question, evidence can be given of

the handing over of a bus ticket.	Now, that is
a fact.

DEANE J: Yes.

MR DEBELLE:  And that is evidence I would contend of an

ordinary fact and an ordinary event about which

evidence could be given. Now, if that handing over

of the ticket was made two or three days before and

then the deceased said to the witness, "I'm going to

Elizabeth in two or three days' time" - let us say it is a Friday - that evidence could not be admitted.

On the other hand if, on that day a ticket is

handed over and says, "I'm going to Elizabeth.

I' 11 catch the bus in five minutes" and ·marches

off down towards the bus stop, then, with respect,

it would appear that that kind of evidence might be

admissible and so, in other words, there is a very -

the question of comtemporaneity seems to be a very

critical factor.

DEANE J: Well, that is what led me to ask you and I have

trouble seeing how, in principle, you can concede

be admissible unless the legal analysis is that it	that the evidence as she walked out the door would
is all admissible but as a matter of discretion the two or three days before is excluded because of the
dangers of it.

MR DEBELLE: Without attempting in any way to be facetious I

may share your difficulty because it is a question

of trying to rationalize the cases as they have been

decided. Could I hand Your Honours - it is a case
which is not on our list, a case of WAINWRIGHT.

This is a decision where it was sought to lead

evidence of a statement made by a deceased as to

where she was going to go. Now, in this particular case, she was last seen - I am looking at the first

AlT3/l/SH	11	25/8/88
Walton

page of the report - on 11 September when she

left the lodging house. She was not seen alive

again and it was sought to introduce evidence

of a statement made in that afternoon and there

was argument about the admissibility which is

reported and I read from the middle of page 172:

All that it is proposed to ask now is the question, "When going away did she
make a statement?" That question can be

put, but not the question, "What statement
did she make?"

Then the Attorney-General, seeking to introduce the evidence:

The woman is leaving her house when she makes a statement, which is a declaration

of intention, and it is submitted that
that is a statement accompanying an act.

It is part of the act of leaving, and on

that ground it is proposed to ask the

question to which objection has been

made.

The Lord Chief Justice - It was no part of

the act of leaving, but only an incidental

remark. It was only a statement of intention

which might or might not have been carried

out. She would have gone away under any

circumstances. You may get the fact that on
leaving she made a statement, but you must

not go beyond it.

And then there is a note of POOK, tried before

Lord Chief Justice Bovill in 1871, and, in that

case the murder was committed on the night of 25

and on the morning of 26 April:

The deceased was discovered in a dying state.

She had lived in the prisoner's family and

suspicion attached to him. One of the

witnesses, Fanny Hamilton, who was called
by the prosecution proved that for ten days

prior to the 25th of April, the deceased had

lodged in her house -

and a little further down, it was noted she was

going out on that evening:

It was proposed by the Solicitor-General to

ask the question "What did she say to you."

To this Huddleston objected on the ground

that whatever was said was said in the

prisoner's absence, and he had no means

of cross-examining upon it. It was

AlT3/2/SH	12	25/8/88
Walton

thereupon contended by the Solicitor-

General that it was a declaration so far accompanying the act itself as to

render it part of the res gestae, and

he cited in support of his contention

the case of HADLEY.

And I jump now down to the ruling that the evidence

was not admitted. Now, there you have two decisions

and there is a third I would cite, Your Honour. It
is not on our list, REG V PETCHERINI, 7 Cox CC 79

which is to like effect.

So, in a criminal prosecution, at least, it

can be said to put it at its lowest, the Court is very slow if, indeed, it is not prepared to admit

evidence of a statement of a bare declaration

unless there is a very close temporal connection

between the making of the statement and some other

act.

TOOHEY J:  I am not sure what you mean by a close temporal

connection, Mr Debelle. I understand if you mean

it is so close it becomes part of the res gestae
but, putting that to one side, how does the

closeness of the temporal connection become a

yardstick for either admitting or rejecting?

MR DEBELLE: Well, I think all that one can say is that it

really has to be part of the res gestae to be

admissible at all.

DAWSON J:  Mr Debelle, once you admit that a statement has

some relevance, apart from the truth of the statement,
the truth of the assertion that is made in the

statement, surely it must be admissible for that

limited purpose?	You see, there are very few
statements that are pure	hearsay, are there not?

I mean, the statement where X says that Y did it,

well, that is pure hearsay and obviously_

inadmissible,but most statements are made in

circumstances which mean that they may have a

relevance apart from the truth of the assertion

or implied assertion in the statement and this

is one such instance, is it not? The mere fact

that she made a statement is relevant; that much

you would concede, I take it, and if the

mere fact that she made a statement is relevant,

the content of the statement is relevant.

MR DEBELLE:  I think Your Honour is - I said to Your Honour

earlier, the fact of her intention might be relevant.

I am not conceding that what she said is relevant

because that is to concede the - - -

DAWSON J:  The truth of what she

AlT3/3/SH	13	25/8/88
Walton

MR DEBELLE:	- - - that contains an element as to the - I am sorry to interrupt, Your Honour - the truth
of what she said cannot be admissible.

DAWSON J: Well, the truth of what she said, of course, is

relevant but it is excluded because the hearsayrule is

an exception to the general principle that all

relevant evidence is admissible.

MR DEBELLE:	Yes.
DAWSON J:	But there still remains, once you have excluded

that, a degree of relevance which could be said to

make the statement admissible.

MR DEBELLE:  But this is where I come back to the proposition

that if there is an element of truth and the purpose
of tendering the evidence is to prove the truth of
the statement, then the evidence becomes inadmissible.

Can I put it this way: without this evidence there

would not have been this yardstick by which one

determined who of the two, Cindy Bragg or the

accused, was telling the truth. Without this

evidence, there would be nothing by which one could

establish whether or not she went to Elizabeth on

that evening.

DEANE J:	But is not the truth, Mr Debelle, just a side track
here? I mean, the only thing that can be true or
false about a statement of intention is whether it
is your intention.
MR DEBELLE:	Or, indeed, whether, in fact, you had carried it

out because there may have been some kind of

supervening event or you may subsequently change

your mind. At the time you make the statement,

that may well have been your intention.

DEANE J: But a statement of intention does not say anything

at all about whether you would carry it out. All
it says is what your intention was.	If it is true,

that was your intention. If it is false, that was

not your intention.

MR DEBELLE:  No or, indeed, as I say, you have still other

- there may be other things which prevent you

carrj'.ing out that :intention. Whether it is a change of

mind or something outside your intention.

DEANE J: All I was suggesting is that the talk about truth

is really a side track when you are talking about

the truth of a statement of intention.

MR DEBELLE:  But the point that I am seeking to make is that

if all that the evidence was called to prove - no,

I will rephrase it - that one cannot say that the

evidence was led only for the purpose of seeking

to prove something she said because it was

AlT3/4/SH	14	25/8/88
Walton

important to drawtwu conclusions from what she

said, namely, (1) that she was going on 5 December and that it was Paul Walton she was going to meet.

DEANE J: But, assume that it was relevant to prove that the

accused had just had a pain between the eyes - the deceased had had a pain between the eyes - and she

said, "I have a pain between the eyes". That

statement would be relevant to prove that she had

a pain between the eyes and the query would be,

"Well, now is the fact that she had a pain between

the eyes admissible or not"? Why is it not the

same if she says, "I have the intention of catching
the bus to Elizabeth" and why does not the query
then become, "IS: the fact of her then intention

admissible"?

MR DEBELLE: That is a question which I find difficult to

answer.

DEANE J:	But that seems to be the approach adopted in those
cases.  They seem to be saying the intention was
not relevant or was not admissible because she
might have changed it and so on.  ·

MR DEBELLE: That is the approach in WAINWRIGHT, yes.

DEANE J: Yes.

DAWSON J:	Once you say the intention is relevant, then it is very difficult to get away from the fact that
this evidence was relevant. Take, for instance, if she had bought a ticket to a particular
destination, had prepared herself, had set off in
that direction and boarded a bus and so on, all of
that you would concede would be relevant evidence.
Well, a declaration is no more than a fact. A
declaration of intention is no more nor less a
fact than evidence of that sort. It may be a verbal
fact but it is a fact which is saying no more, I
think, than Justice Deane was saying.
MR DEBELLE: Well, then, I accept the force of that but one

is still left with the problem of the probative

value of this evidence and it may be that if one

is looking for a criterion by which one determines whether this kind of evidence is admissible or not then one does have regard to some kind of temporal

connection between the making of the statement and

some other act. The cases on those exceptions to

the hearsay rule allowing statements of intention

all, or many of them, have an element of contemporaneity.

Indeed, the Chief Justice's remarks in HENDRY

emphasize the need for the statement to be

contemporaneous. So that at the end of the day

it might be that it does come back to a question

of the probative value of this evidence as against

AlT3/5/SH 15 25/8/88

Walton

the prejudice it might cause to the accused and

that may have been the basis upon which - - -

DAWSON J:  But that is looking at it as an exception to the

hearsay rule. On the approach that was being put to you, there is no exception to the hearsay rule

because the evidence is not being put forward as

hea:r:say. All that the evidence is being led is
to - the purpose for which the evidence is being

led is to prove that that statement, true or false,

was made.

MR DEBELLE:  What I am trying to do, Your Honour, faced

with SUBRAMANIAM on the one hand and WAINWRIGHT

on the other, is try and work out where the criterion

lies. This is the difficulty in this case and this

is ·the dif~f..iculty which, in our submission,

requires this Court to resolve that issue.

I do not know that there is very much more that

I can say on that issue, Your Honours, than what I

have said. Can I turn to the evidence in the

second category, that is, the evidence of the

telephone conversation or the account, rather, of

Rhonda Bowett as to the conversation the little

boy, Michael, aged four, had - - -

WILSON J: Aged two, I think, Mr Debelle or is Mr Justice Moore

wrong in his statement of the age of the child?

Page 930, he says he was a ~-year-old, I think, somewhere there.

MR DEBELLE: In all events - - -

WILSON J: Page 927 he refers to Michael as a two-year-old.

It does not matter.

MR DEBELLE: It does not matter, no. In all events, a very

small little boy.

WILSON J: Yes.
MR DEBELLE:	Now, I remind Your Honours of what is said at

page 916 as to what was said. His mother,

Lorraine Croad says, and it is ruled to be

inadmissible evidence:  ·

"Michael, daddy's on the phone".

And then Michael speaks on the telephone and says:

"Helly daddy". "Yeah, I've been good".

Now, there are three points we would like to make

about this evidence. First of all, the evidence which is being given is the evidence of a person
who overheard a conversation as opposed to the

AlT3/6/SH	16	25/8/88
Walton

evidence of a person who actually took the telephone

call.	So, in that respect, the decision in RATTEN
V REG is distinguishable.	The second point that

we would like to make about this telephone

conversation is that by the time the boy comes to

the telephone, his mother, according to the witness,

has said to him, "Michael, daddy's on the phone".

In other words, as far as the boy is concerned,

the caller has been identified and it is very

natural for him, this two or four-year-old, it

really does not matter, to say, "Hello daddy".

If someone says to me, "David Smith's on the

telephone", it is a very natural reaction for me to pick up the phone and say) "Hello David". In other words, what we are saying the caller, having

been identified to the boy in this way by evidence

which is agreed to be inadmissible, then here you
have evidence being given of a boy really repeating

what has been said to him by someone else and there

is nothing else in the telephone conversation, apart

from the response, "Yes, I've been good" to indicate
who the caller is and that "Yes, I've been good" is
the kind of statement that anyone might make to a

little boy so its probative value, we contend, is

very weak.

The third point we make about this account

of the conversation is that the witness, Rhonda

Bowett, did not hear Lorraine Croad identify the

caller. Indeed, as can be seen from appeal book 1

at pages 91, 92 and 93, really, all that she knew

about the identity of the caller was what she was

told by Lorraine Croad after the call had been

completed.

Now, we say that this evidence should not have been admitted for two reasons. First, because the

caller had been identified and all the boy was really

doing was repeating what the court had held to be

inadmissible evidence. It was held to be inadmissible

for the mother to have said, "Michael, daddy's on the

phone". He goes to the phone and says, "Hello daddy".

Secondly, for the reasons which we have just advanced,

a person cannot give evidence of the overhearing of

a conversation in this way. All that can be

permitted is a person to give evidence when they
are the person who took the telephone call

themselves. That is because the person who takes the call is capable of being cross-examined as to

the voice which was heard, the nature of the voice,
circumstances which - or other characteristics of

the call - which might have been heard. The

Chief Justice says that this evidence is capable

of being tested. With respect, we do not know how

one can test this kind of evidence. You cannot test

this kind of evidence because there is no means

AlT3/7/SH	17	25/8/88
Walton

of grabbi~g hold of some other objective

fact or determining other objective facts by which

one can determine who or who is not the caller.

The Chief Justice deals with this question at

pages 920 and 921. He says at the top of page 920:

Much has been written, of course, about the

applicability of the hearsay rule to implied

assertions. To my mind, however, the words

spoken are not admissible by reason of any

assertion implicit in them as to the identity

of the other party to the telephone call.

What is admissible is not any implied assertion

but the fact that the words were spoken.

As I read that, that seems to be saying one cannot make any implied assertion from his words but what one can accept is the express statement, namely,

"Hello daddy". Now, if one is accepting that express

statement, surely the next consequence is that one is

being asked to assume whether it is daddy who is on the other end of the phone. I have some difficulty

in seeing, therefore, with respect to the Chief Justice,

how, in fact, His Honour's distinction makes the

evidence the more admissible.	He then goes on to
say:

It is a commonplace of the law of hearsay that

what is prohibited by it is the testimonial

use of statements made out of court. If the

mere making of those statements is itself

a relevant fact, the proof of those statements

does not infringe the hearsay rule.

We do not quibble with that but what we do say is that, as I understand what His Honour has just

determined, it is not the mere making of the statement

which is the reason for this evidence being admitted.

It is being admitted because it is the express

assertion of who is on the other end of the phone.

Where one party -

he goes on -

to a telephone conversation uses expressions

which would ordinarily be used only if the

other party to the conversation were a

particular person and the first party uses

no further expressions which would indicate

that he had been disabused of a false

impression as to the identity of the other

party, it seems to me that the fact that

those expressions have been used tends to

identify the other party to the conversation.

AlT3/8/SH	18	25/8/88
Walton

And he goes on to develop that fault.	Towards
the bottom of the page:

The nature of the expressions used by one

party to a telephone conversation are

therefore, in my opinion, capable of

indicating the identity of the other

person. The degree of persuasiveness of

such indication will vary with the

circumstances.

With respect, His Honour seems, now, to be coming

back either to saying that there is an express

statement proving the identity of the person or

one can make an implied assertion and one can

draw from the statement that it is implicit as to

who is the person on the other end of the line.

DAWSON J: Well, I am a little puzzled because when you look

at the sunnning up at page 735 and page 739, the

trial judge directed the jury that -

MR DEBELLE:	I am sorry, Your Honour, at page?
DAWSON J:	735.
MR DEBELLE:	Yes.
DAWSON J:	- - - directed the jury that they were to

disregard all of this evidence. He says that:

As a matter of law there is no evidence

available to you to come to the conclusion

that the accused rang the deceased on that

Wednesday.

Why are we debating it then?

MR DEBELLE:  Why?

DAWSON J:  Why are we debating these questions when that was

the direction that was given. And, again, on page 739,

page 739:

I must direct you ..... that it would be

wholly impermissible, completely wrong,

for you to use the statements attributable

to Lorraine and indeed the statements

attributed by Rhonda Bowett to little

Michael as evidence that it was Paul Walton

on the phone on that occasion.

AlT3/9/SH	19	25/8/88
Walton

MR DEBELLE: Well, the difficulty is the evidence was

admitted and then it would seem that the judge

was having some second thoughts about it here, because

the evidence is all in and the jury is told

only to disregard the evidence of Michael.

WILSON J:  You see at page 738 the basis on which

His Honour admitted it, I think, do you not,

towards the lower part of the page, that

all it goes to prove is that:

she was proposing to, or expecting to, meet

the accused at a certain time on a certain

date and at a certain place.

MR DEBELLE:  Yes.

WILSON J: And he, having earlier said that "It is some

evidence tending to prove her state of mind
and her intentions at the time when the

respective conversations took placen. But

neither of those two passages would take away

from the firm directions to which Justice Dawson

has referred.

MR DEBELLE:  I must acknowledge he does give that

direction. Then one is of mind to ask: why

was the evidence admitted at all, because that

is all that the calling of the witness

Rhonda Bowett as to that conversation could

have been intended to prove, that it was

Paul Walton on the other end of the phone.

TOOHEY J: Well, Mr Debelle, as I understand, His Honour

admitted the evidence because he thought it

was relevant and he did not resile from that

position but simply in the end said that it

did not go to prove what it was adduced to

prove, in other words, it just did not

establish anything.	But that was a different
question as to whether it was admissible.

MR DEBELLE:  Your Honours, the evidence given by that boy

really is, in one sense, pretty devastating

evidence. That was, we would say, fairly

clearly established in the minds of the jury

in the early stage of the trial and it is

very hard to put out of one's mind, even with

a direction perhaps as firm as this, that

it was not Paul Walton on the other end of the

phone, given that boy's conversation. This is

the difficulty, the prejudice created by the

admission of this evidence. It is very hard

to put to one side, even with a direction of

this kind.

If Your Honours please, there is nothing

more that I can say in relation to the second

AIT4/l/JM	20	25/8/88
Walton

question. In short, our submission is that

Your Honours should determine that neither of

these categories of evidence was admissible.

We would contend that as this evidence is

so crucial to a determination of who was

giving - or so crucial for the providing of

a yardstick by which the jury could make an

assessment of the evidence respectively
given by Cindy Bragg and the accused, the evidence

ought to be ruled inadmissible and there oueht

to be a retrial. If the Court pleases.

MASON CJ: Yes, Mr Solicitor.

MR DOYLE: If the Court pleases. If I could approach the

matter in a similar way to my friend, but in

terms of the various groups of evidence. Does

the Court already have the outline of submissions?

MASON CJ: Thank you. Yes, Mr Solicitor.

MR DOYLE: If the Court pleases. If I could deal first

with the statements made by the deceased prior

to leaving the house, that she was intending

Harvey, he said that the statements

to meet the defendant at Elizabeth Town Centre. witness

were made on the Thursday at about 5.30 pm.

So, if time comes into it, and I will submit it does not, the statement to which Mr Harvey

deposed was very close to the time of her

leaving the house. The page references to

that are 583 to 584.

WILSON J: Well, 24 hours before, is it not?

MR DOYLE:  No, Your Honour.

WILSON J: Wednesday?

MR DOYLE: Unless I have misread it, Mr Harvey's evidence

was evidence as to a statement made the very

day she left to go to Elizabeth.

WILSON J:	I thought you said it was on the Wednesday.
MR DOYLE:	No, Your Honour, Mr Harvey on the Thursday,
as I understood it, about 5.30 pm and the evidence was that she left within about half an hour of that. That is page 583 to 584, but,
Your Honours, I think I have probably used
there the numbering of the original transcript,
not the books, so that is actually in book 1.

Mrs Stitt gave evidence of statements both

on the Wednesday and the Thursday. She lived in

the house where the deceased lived and all I

could find as to timing there was that as to the

AIT4/2/JM	21	DEBELLE	25/8/88
Walton

a statement by the deceased that she intended to meet the accused at Elizabeth Town Centre

Thursday she said that the deceased made several
such statements and some of them were in the

afternoon. That is pages 669 to 672.

and his evidence was as to the Wednesday evening,

that is the day before, and again that is page 720. All those numbers are, I think, original transcript

numbers, not appeal book numbers.

It does not perhaps advance the argument much

because in the end lines do have to be drawn,

but it would be odd in a sense if that evidence

was inadmissible and yet admissible was the fact

of finding in her pocket a bus ticket which was

a bus ticket, as was proven, sold by a bus

driver on a journey which, had she got off the

bus at the rightplace, would have got her to

Elizabeth Town Centre at about 6.30. In other

words, it does seem odd, if that is relevant,

that you can prove where she is going by the

fact that you find in her pocket a bus ticket

that would have got her there at the right time,

and yet you cannot prove her intention by reference

to these statements.

DEANE J: Except there are two aspects of this, Mr Solicitor,

are there not? One is she says, "I'm going to

Eli.Za beth". That is a mere statement of intention.

MR DOYLE:  Yes.

DEANE J: The other is she says, "I'm going to meet Paul".

That is a statement, in these circumstances,

"There is an arrangement between Paul and myself

that we will meet at Elizabeth".

MR DOYLE:  Yes.

DEANE J: Now, the first,obviously if intention is admissible,

there is a great deal to be said for the view

that you are not in the hearsay rule, but at
the heart of the second is the statement that

Paul has arranged with me to meet at Elizabeth.

Well, now, on what earthly basis is that

admissible?

MR DOYLE:	I accept, Your Honour, the jury should be
directed, and,as I understand it, the judge really
did direct them, that they could use a statement
such as that only on the basis that she was
intending to meet Paul and they must not draw from
it an inference, unless there was other admissible
evidence that she had made an arrangement with
Paul.

AIT4/3/JM	22	25/8/88
Walton

DEANE J:  But when intention is something you cannot

achieve yourself unless hearsay is proved to

supplement it, why is not intention inadmissible?

MR DOYLE:	Your Honour, I submit that even if the intention
could not be wholly achieved by herself, it
would still be admissible evidence. Let us just
say the evidence showed that the deceased
habitually went to a certain hotel at a certain
time and the evidence was that the accused said,
"I'm going to the hotel to meet Paul". Now,
it is simply evidence proving that she is going
to a place where he habitually is and that she
is expecting to meet him, hoping to meet him.

DEANE J: But you have missed the point I was trying to

make, Mr Solicitor. If I say, "I'm going to

the shopping centre at Elizabeth", that is

my intention.

MR DOYLE:  Yes.

DEANE J: If I say, "I'm going to meet Paul there", the

only relevance of that can be that Paul has

arranged with me to be at Elizabeth where

I'm going.

MR DOYLE: Well, with respect, I would differ there,

Your Honour. I would submit that the further

relevance is she is going there and she at

least is intending or expecting to see him

there, which in this case takes it one step

closer. It does not just prove that she was

going somewhere where, on other evidence,

he was likely to be, but that she was going

there and for her part she was going to try
to see him there and, in my submission, that

is a relevant fact in itself.

DEANE J: But why is that relevant?

MR DOYLE:  Because -

DEANE J: It is relevant to prove she is going to Elizabeth,

but why is it relevant to prove that she is

hoping to see somebody else there unless it

is relevant in the sense of proving what is

going to happen?

MR DOYLE: Well, I submit that it is relevant in that

sense that if it is proven to the jury that

she said, "I intend to go to Elizabeth Town

Centre", that is evidence from which the jury

could conclude, if they saw fit, that she did

go there. If she said, "I'm going to

Elizabeth Town Centre and I'm intending to

meet PauI', it is evidence from which the jury

could conclude, if they saw fit, that she went

there intending to do it and it could help them

23

AIT4/4/JM	25/8/88
Wal ton

come to a conclusion that she did in fact

see him there.

DAWSON J: That she went there and had a reason for doing it?

MR DOYLE:  Yes. What they must be warned about is not

to infer from her saying it that Paul has

arranged to meet her. I accept that, Your Honour.

But, if in the particular case it is relevant to prove not only where she went, but whether she had a reason and, in particular her reason was

to meet someone who she was expecting to be there

or hoping to be there, if it is relevant to

prove that further fact, then, in my submission,

the statement is admissible for both purposes

and it is part of my contention that it is

properly put before the jury not only to prove the fact of her intention but as evidence from

which they might infer that she achieved her

intention, that she did go there and, but with

more caution, that she did meet him, because

there was evidence indicating she went there.

There was probably no other evidence that she

did meet him but, in my submission, it is some

evidence that she did meet him.

DEANE J: Well, I will not interrupt after this, but

on that, if she said, "I'm going to Elizabeth

and I hope to see Pauln, you would say the

statement that she hoped to see him was some

eivdence that she did see him because it is

only an arrangement with Paul that will take

intention beyond hope.

MR DOYLE: Well, true, with respect, I could agree with

that. Your Honour, for a start I would accept

that the· jury, if they were being invited to use

it as evidence that she did in fact meet him, as they were not here, but if they were, they should be very strongly warned about the danger

of using it in that way and it might be safer	to tell them not to do it that way if that is
the only evidence. But, in my respectful
submission, if in fact she goes to a place
intending to meet a particular person, that
does, I would submit, just as a matter of
relevance, take you a little further than knowing
merely that she went to the place. Elizabeth Town prove that she went to the shopping centre that
night is one thing. There is then a chance, on the other evidence, that she met him. But if
she said before she left that she was either hoping or intending to meet him, in my submission,
that is relevant. The critical question becomes
just its weight and whether it is safer to
advise the jury not to use it at all in the
second sense and just to restrict it to evidence

AIT4/5/JM	24	25/8/88
Walton

that she did intend to go there and forget about

using it as evidence of what she was hoping to

do once she got there. But I would contend that

it is relevant and admissible on both bases, subject to a discretion to exclude it on the

second basis, because of its somewhat ephemeral

nature if there is no admissible evidence of

an arrangement to meet.

So, Your Honours, I submit that in this

case her intention was relevant and if the

jury accepted the evidence as to her intention

it was further material from which they could

conclude first of all that she went there and
secondly, that she did meet the accused there,
and, in my submission, as I have put,in the

outline, it is either admissible simply as original evidence, the hearsay rule simply

not applying to it, or alternatively, on the

basis that it is an exception to the hearsay

rule. In mySlbmission, the former basis is

the more satisfactory and logical one but

for my purposes it is sufficient if it is

held to be admissible on either basis.

I further submit, in response to my

learned friend's argument, that the temporal
link between the statement and the act of

leaving the house is irrelevant in terms of

strict admissibility. Obviously, the more

removed the statement is from the time of
leaving the house, the less weighty becomes

the evidence and the more reason for the

judge either excluding it or warning the jury

to be cautious about its use. But, in my

respectful submission, logically once one

concedes that intention can be proved by evidence as to a statement made, then it

must follow that logically when the statement

was made is irrelevant. It goes to weight,

but not technically to admissibility. So, I

would submit the temporal factor is not

relevant but, in either event here, as all

statements were made at worst the day beforehand,

in my submission, they were not so far removed

from the time of leaving the house that one

would say that the temporal break was such that

these statements should not be admitted.

Could I also say by way of connnent on my

friend's submissions that, as I understood

his submissions, they at times seemed to drift

into the issue of res gestae. In my submission,

we are not here on this particular aspect of the

argument concerned with that issue. We are concerned

with the simple question: was her intention

relevant; if it was, might her statements be used

to prove it. The principle of res gestae might,

AIT4/6/JM	25	25/8/88
Walton

in a given situation, provide a different basis
for admitting the statements but, in my submission,

it does not apply here and all the more reason

why questions of the temporal link should be

kept apart.

Could I go relatively briefly to the authorities,

Your Honours, which are set out in the outline.

I concede that it is impossible to reconcile all

the cases and it is perhaps not very helpful
to attempt to distinguish or explain cases such as

WAINWRIGHT, the case to which my learned friend

referred this morning. In any textbook on the

topic one is going to find cases either side

of the line and it is not very helpful. All I

can say is Lord Chief Justice Cockburn clearly

took a very strict view of admissibility,

witness BEDINGFIELD's case,where he excluded
the statement of the woman as she came out
the door with her throat cut, saying, "Bedingfield's

cut my throat".

DAWSON J: That has been overruled, has it not, now?

:MR DOYLE: Well, it has more recently, yes, Your Honour,

and I did notice, I think it was in Mr Justice Thomas'

book on judicial ethics that Lord Chief Justice Cockburn

took very strong exception to some criticisms of

his decision in that case and engaged in some public

correspondence on the topic and was subsequently

rebuked, I think, by the Lord Chancellor for

having done that. So, obviously, on these topics

at least he took a very restrictive view,which

simply illustrates that in the end, in a lot of

these issues, it becomes a judgment on the facts

of a particular case and so it is perhaps not

helpful to worry too much about the details of

particular cases.

Your Honours, on this particular point I only want to read from one of the cases, and that is	BLASTLAND, but before I do, could I just sumit	that in relation to RATTEN, the evidence there
of the phone call from the woman seems to have
been received on the same basis because it was
received as showing her state of mind at the
time she made the phone call. Your Honours will
probably recall that was the woman who telephoned
the telephone operator and said, "Get me the police" or "Connect me to the police, please" and
the operator was allowed to say what she said.
The Privy Council there held that that was
admissible as showing her state of mind and that
she was in a state of fear at the time. In my
respectful submission, in principle, that is indistinguishable. It is using the fact of the
words to infer something about the state of mind of the speaker. Here we seek to infer an
intention; there it was sought to infer that she
was in fear.

AIT4/ 7/JM	26	25/8/88
Walton

The second case on the outline, REG V HENDRIE,

again, Your Honours, I do not want to read from

it. In that particular case the deceased was

found in the bedroom of her home strangled,

I think it was, but in any event, murdered

and sexually interfered with. There was no

sign of any struggle in any other part of the

house. The evidence which was led and admitted

was that a day or two before that she had discussed

with her husband plans to convert a window in

their bedroom into a door. That evidence was led
to explain, to the extent it might, why it

might have been that,without any struggle evident

anywhere else in the house, she might have been

in the bedroom with a strange man. Again, in

my submission, it was admissible on the same

basis. Once again, it was simply sought to

prove her state of mind,which became relevant

on the particular facts of the case.

Could I just go, Your Honours, briefly to

REG V BLASTLAND, because I submit that the

same view on these issues appears to be taken in

England. That is REG V BLASTLAND, (1986) AC 41.

In that case, Your Honours, the accused was
charged with the murder of a small boy and in
substance his defence was that another man had
done it and he deposed in his defence to the fact

that he had seen this other person near the scene

just after he, the accused, had run away, the

boy still being alive at the time. The judge

rejected evidence from other witnesses that before

the death of the boy was discovered this other

man, whom I will call M, had said to the other

witnesses that a boy had been murdered. Obviously

the use to which the evidence was sought to be put was

that, well, here is this M who, on the accused's

evidence, was near the boy when the accused

last saw him alive, showing knowledge of his death

before discovery of the body has become public.

Now, Your Honours, when their Lordships came

to deal with the admissibility of this evidence,
and they uhpheld the judge and held it was not

admissible, first of all, at page SSC,

they clearly accepted SUBRAMANIAM as establishing

that statements could be admissible to prove

a state of mind and it is also. perhaps of

some significance - that is page 58H, Their

Lordships clearly were content to accept the

reasoning contained in RATTEN's case. However,

I submit that when they stated the relevant principle, they stated it in a form which

would support the decision arrived at here. That

appears at page 54, just below letter C.

It is, of course, elementary that

statements made to a witness by a third

AIT4/8/JM	27	25/8/88
Walton

party are not excluded by the hearsay rule

when they are put in evidence solely to prove

the state of mind either of the maker of the

statement or of the person to whom it was

made.

In my respectful submission that is a very

clear statement of the principle for which we

contend here and it would appear that English

law is the same on this point as we submit

Australian law is. It is perhaps just worth

noting, Your Honours, that on page 56, in

their discussion of the English case of

LLOYD V POWELL DUFRYN STEAM COAL CO LTD, they,

at the bottom of page 56, clearly proceed on
the basis that statements there were rightly

admitted as proving the intention of a

deceased man to support a child, the question

of that intention having become relevant in

a dependency action on behalf of the child under

the workers compensation legislation. So, everything

in that judgment, in my submission, is consistent

with our contention. They excluded the evidence

in the end because they came to the conclusion

that the state of mind of Mat the particular time

was not relevant. Now, one could debate at

great length whether it was or was not relevant
but the critical thing is that they stated,

in my submission, the law in the way for which

we contend.

Your Honours, could I just provide to the

Court, without wanting to read from them, two

other authorities which came to my attention

subsequently? The first of them, Your Honours,

is a New South Wales decision from the civil

area, but again stating quite firmly that

in principle intention can be pro·ved in this

manner. That is the decision in DOBSON V MORRIS,
and the second, Your Honours, is just a page or

two from Wigmore on Evidence, which appears to

indicate that in America the same view is taken.

Your Honours, that is all I want to say on

the statements falling in the first category.

I submit they were clearly admissible.

Coming then to the statements in the second

category, that is the words spoken by the deceased

and by her son in the course of the telephone

as to the age of the child, Miss Abraham	conversation. Could I just say, Your Honours,
who was junimr counsel at the trial, her
recollection is that the child was three to four
years of age but on running through the transcript
this morning we cannot actually pick anything up that clarifies that point.

AIT4/9/JM	28	25/8/88
Walton

MR DOYLE (continuing):  Now, Your Honours, the statements

while on the phone, first of all by the child,

"Hello Daddy", and "Yes, I've been good", I take

my learned friend's point about the child having been

given the phone being told, "Daddy's on the phone",

but on the other hand, one might well expect that if

it was not Daddy that things would have been said that

indicated that that was not so. So while that does

perhaps go to its weight, in my respectful submission,

it does not detract much from its weight and, in my

submission, certainly does not detract from its

admissibility.

Other than that, the evidence, if admitted, clearly

tended to show that the deceased was talking to someone

she knew and in the process of making an arrangement.

Now, that sort of evidence, Your Honours, has been

called by some of the writers "implied assertions"

on the basis that it is evidence of a statement which,

at the time, was not intended to be assertive of

anything but is later used in that way. The simplest

illustration is if evidence is given that on a

given occasion I have said, "Hello X", and it is used

to prove that X was there at the moment, or that I

was speaking to him.

Your Honours, the question of the correct

categorization of such statements is something which

seems to vex the writers and the textbooks, and again

I just make the preliminary observation that if one

excluded such statements in all cases it would be rather

odd because frequently in law conduct is admitted on

exactly the same basis. If I shake my fist at someone

that could be, in appropriate circumstances, proved in

evidence to prove I was angry with him and it would seem

odd if, at that time I shook my fist I also said,

"I'm angry with you", if my statement could not be proven.

I was not intending to assert anything to anyone except him when I said it, and yet later, if it is sought to be led, on some views it should be excluded because it

is hearsay, and yet the shaking of the fist is usually

admitted although, in the end, it is used to exactly

the same end to show that at the time I was feeling

angry.

DAWSON J: Yes, because there are two aspects to an event like

that, are not there? There may be an implied assertion

of fact, but also you could infer from what was done

the same fact.

MR DOYLE: 

Yes, but although it perhaps tell against my ultimate

argument a bit, Your Honour, I with respect cannot
draw any distinction between the two. If you can prove

the shaking of my fist as evidence that I, at the time,

felt angry towards the man, in my respectful submission

it is very difficult to see why you cannot prove the

words I use to him at the same time to prove the very

same thing.

AlTS/1/HS	29	25/8/88
Walton

DAWSON J:  There is a distinction. You can look at it as a

statement asserting something, or you could look at it

as merely what the Americans call "a verbal fact"

from which you may draw the same inference, but it is

looking at it in two different ways, is not it?

MR DOYLE:  Yes, Your Honour, I accept that distinction, yes.

Your Honours, when one comes to the implied assertions, as I indicated, the law does seem to be in a somewhat

uncertain state. I do nbt want to read from Cross on

Evidence, the Australian edition, the passages that

are set out there, but the authors there suggest five

possible views which can perhaps be simplified down to

three. The first is that both words and conduct, in

that situation, are all implied assertions, are all

hearsay, and must all be excluded, unless there is some
recognized exception to the hearsay rule. The second

possibility is that you allow the conduct to be proved

but not the words used, and the third view, which is

the one for which the authors contend, and for which I

contend, is that, in that situation, none of the
evidence should be excluded, that if the words are
proven as a fact, albeit as a basis for inferring

something about the speaker, that nevertheless they

are admissible; and that is the view for which, in the

end, the Australian edition of Cross on Evidence

contends.

The English edition of Cross on Evidence,

Your Honours, is somewhat ambivalent in the sense that the author gives a wider meaning to assertions and seems

to say that the statement, "Hello X" is an assertion,

but goes on to say that if, in the end, you conclude

the statement is not assertive, then it should be

admitted and so, in that sense, somewhat ambivalent.

Phipson on Evidence, Your Honours, from which I also

do not seek to read, appears to lean against the

admission of such statements in all circumstances and

seems to say, also, that conduct used in the same way

should be excluded, and so perhaps takes the most rigid

view.

The authorities, Your Honours, are also, in this particular aspect of the matter, somewhat divided, and

I only want to refer, and fairly briefly, to the four

on the outline. The first one, from which I do not

wish to read, Your Honours, is WRIGHT V DOE on the

demise of Tatham. In that case, Your Honours, which

was argued on a number of occasions and at great length

at various levels there were two broad issues. The

central issue was the sanity of the deceased and there

were two categories of evidence which had been adduced.
The first category was evidence that boys in his
village, when he ·Went past, customarily said, "There's

crazy Tatham", they threw stones at him and behaved in a way that indicated that they regarded him as being of

unsound mind. That evidence was admitted.

AlTS/2/HS	30	25/8/88
Walton

The second category of evidence comprised

letters written to the deceased by persons who were

not called as witnesses and the letters were tendered

on the basis that their contents indicated that the

writers thought they were writing to a sane man,

because they were discussing business matters and,

obviously from the point of view of those who sought

to tender them, you would not write such letters to

a man unless you considered him to be sane. Although

there was some division among the judges at all levels,

the general view was that the conduct of those boys

was admissible - in fact, as I recall it, no one

queried that - but that the letters were inadmissible because they were tendered to prove the state of mind of the writers of the letter when they wrote the

letters, and these could be regarded as implied

assertions in the sense that the letter writers were

not saying anything to anyone at the time; they were

simply using certain words from which an inference was

sought to be drawn. So, Your Honours, that authority

probably stands somewhat against the contention which

I advance.

The only other thing of significance about that

case, Your Honours, is that I notice when it went to

the House of Lords and the judges were summoned to

address Their Lordships, that Baron Bollan,

who was one of the judges who addressed Their Lordships,

in the course of his speech said that what made it

difficult for him in this case was that he had been a

witness at both trials as to the sanity of the deceased,

and that because he was firmly of the view that he was

sane, he found it very difficult to address this

question in an abstract manner, which is a surprising

thing to find in England in the middle of the
19th century.

Your Hours, RATTEN V REG, I submit, is authority in support of the admissibility of evidence in a case

such as this because in RATTEN V REG, again, the lady

who made the phone call was clearly not asserting a fact

to anyone in particular. She was speaking in a manner

from which the jury were invited to draw certain

inferences and, in my submission, in that sense the

evidence was tendered, as it were, as evidence of an

implied assertion, "I am in a state of fear. There is

something wrong going on here", and, in my respectful

submission, on the authority of RATTEN V REG, the statements on the phone here would be admissible.

Again, I do not seek to read from it, Your Honours,

because the facts were quite different in that case,
but, in my submission, the underlying principle must

have been the same.

The statements were also admitted pursuant to the

res gestae principle, but it is clear from the
judgment of Their Lordships that they took the view

that the statements were not hearsay at all. They were

AlTS/3/HS	31	25/8/88
Walton

admitted simply as the words she used over the phone.

The jury were entitled to infer from the words she

used that she was in a state of fear and, in my

respectful submission, that, again, is no different

than it would have been had she said over the phone,

"I'm terribly frightened. Get the police". The

words were admitted to prove that she was frightened,

and so -

DAWSON J:  When a statement is admitted as part of the

res gestae, is it admitted to prove the truth of the

assertion or merely to prove the fact that that was said,

from which you can infer something?

MR DOYLE:  Your Honour, in my submission, you would find both propositions in the authorities. Sometimes one needs

only to prove that the words were used and their truth

is irrelevant, but on other occasions when the words

have been admitted, in my submission it is relatively

clear that they were tendered also as proving the truth

of what one could deduce from the words.

DAWSON J:  Sometimes the distinction really cannot be

made - - -

MR DOYLE:	No.
DAWSON J:	- - - because the inference would be exactly the

same as the assertion that is made, the inference in

conduct.

MR DOYLE:  Yes, and so, Your Honours, for the purpose of my

submissions I certainly would not contend that when

the words are admitted they are to be admitted

irrelevant of their truth, because sometimes one just
cannot draw that distinction. In other words, with

the boy here saying, "Hello, Daddy", if one admits

them on the basis that their truth is irrelevant, in

my submission, one would begin to question why one

admits them because how can it be relevant to know that

he used the word "Daddy" regardless of whether or not

Daddy was truly there. submission, one uses them to prove that fact. This is a case where, in my

DAWSON J:  But the distinction is important because in the one

case you are admitting them as an exception to the

hearsay rule and the other you are no.t. If you admit

them because you want to establish that it was Daddy

because the child says it was, then that is an

exception to the hearsay rule. If you admit them

because you can infer from the fact that a child of

that age would not be saying that unless it was his

father - it is irrespective of the truth of assertion -

you are drawing an inference from the circumstances,

and I think there was other evidence here that he did

not call anyone else Daddy, was that not so?

MR DOYLE:  Yes, Your Honour, there was.

AlTS/4/HS	32	25/8/88
Walton

DAWSON J:	So the distinction is of some significance.
MR DOYLE:	Your Honour, with respect, although it is a

distinction which would support my argument in its

result, it is not a distinction which I respectfully

would draw. I would submit there are some cases where

it is relevant to prove the words were used regardless
of their truth but, in my submission, at bottom here,

in this case, the words are admitted in the end with

a view to proving Daddy was on the other end of the

phone - - -

DAWSON J:	True.
MR DOYLE:	- - - and in that situation I have difficulty

drawing the distinction.

DAWSON J:  But they are not admitted to prove that that

was so because he said it was so; they are admitted

to prove that because as a fact that is the inference

you would draw from what happened.

MR DOYLE:  Yes, I am indebted, Your Honour. Yes, I accept

that distinction but contend that in this case in the

end the words are being used to prove Daddy was there.
So, Your Honours, I submit that RATTAN V REG, when

one looks at what was decided there in the first half

of the judgment before Their Lordships came to the

res gestae point, is authority for my contention.

TEPPER V REG, Your Honours, I have to accept appears

to be authority against me. That was the case,

Your Honours, where the accused was charged with setting a fire and the evidence that was led was evidence from a constable that when he arrived close

to the scene, I think about 20 minutes after the fire

had started, he heard a woman say something like,

"Your premises is on fire and you going away".	The
constable did not know who	the woman was and so there

was no evidence as to how well she knew him and the

question was whether that evidence was admissible as

proof that the accused was there at the time.

Their Lordships, Your Honours, treated the

question solely as one of the res gestae principle,
but clearly from their point of view, if it could not

get in as part of the res geatae, it could not get in

at all. On my contentions the alternative basis

should have been considered, that this was simply a

non-assertive statement made by the woman at the time,

the same as if she had been heard to say, "Hello,

Mr Tepper", and its admissibility should have been

considered on that basis; but it does appear that
Their Lordships took the view that it was either
admissible as part of the res gestae or not at all,
and because it was not part of the res gestae they

held it not admissible. So, in effect, it appears to

be an authority against my contention, although it does

not deal precisely with this argument. It is cited

AlTS/5/HS	25/8/88
Walton	33

I think in both RATTEN's case and in later cases,

and in a sense neither approvingly nor disapprovingly,

but it does appear to be authority against my
contention.

The fourth case, Your Honours, to which I wish to refer, and only briefly, is ALEXANDER V REG,

(1979) 145 CLR 395. Your Honours, that decision was

concerned primarily with a number of aspects of

identification evidence, but in the course of some

of the judgments in that case the question was touched
upon of the admissibility of evidence of a witness of
an out of court identification of the accused, the

person who made the identification not himself giving

evidence of it. So, to put it in somewhat simplified

terms, a situation in which a witness says, "The

victim either no longer remembers identifying the accused or is not here to give evidence, but on a

certain day there was a line up and I saw her identify

him", and two differing views appear to have been

expressed as to the admissibility of such evidence,

Your Honours. The then Chief Justice, Sir Harry Gibbs,

at page 404, in the last paragraph beginning on that

page, said:

If the evidence of the prior act of

identification is not tendered to prove

that the identification was in fact made -

it is not tendered as an exception to the

hearsay rule - the purpose of its admission

must be to confirm the testimony of the

identifying witness by showing its consistency

with his previous act -

and a little further down -

In other words it seems to be admitted by

analogy with the rule that allows evidence

of complaints to be given in sexual cases - and then in the next paragraph beginning on page 405:

In my opinion the authorities are opposed to

the view that evidence of an act of

identification made out of court is admitted

as hearsay.

And he goes on to say that the general effect of his

judgment is that where the identifier himself does not

give evidence of the identification, then evidence from

someone else of the act of identification is

inadmissible. It may be that it is distinguishable

in any event, because that, on one view, would be an

act which was assertive and not a mere implied

assertion. But in any event, the contrary view

appears to have been taken by Your_Honour
the Chief Justice at page 432 where, referring to some

of the same decisions, Your Honour at the bottom of

AlTS/6/HS	34	25/8/88
Walton

the page referred to the decision in REG V OSBOURNE

and then said:

There evidence was admitted from a police

officer to establish that two witnesses

had identified the accused at an

identification parade when each witness at

the trial was unable to recollect having

made such an identification and one of the

two witnesses was unable to identify one of

the accused at the trial. The Court held

that there was no reason in principle why

the evidence should not have been admitted.

The Court proceeded according to the view,

which in my opinion is correct, that the

reception of such evidence does not violate

the hearsay rule or the best evidence rule.

It is the act of identification that is

relevantly in issue. An observer of the act

may give evidence of it.

And so, by parity of reasoning, in my submission, in

the present case, if the fact of the phone conversation

is a relevant fact, then a hearer of it may give evidence

of it, and of its terms obviously, without, on the view

which Your Honour took there, infringing the hearsay

rule. So that appears to be some authority also in

support of my contention. So, Your Honours, my

submission as to the words used in the course of the

phone conversation is that they are admissible, either

on the basis that the Court should hold and determine

that the law in Australia is that implied assertions are

not at all subject to the hearsay rule, or alternatively,

if it be a narrower basis, that the fact of the

conversation was a relevant fact, albeit in a sense

its truth was relevant, and that under those

circumstances, the words used in the conversation

become admissible.

DEANE J:  It has its problems, though, has it not?

MR DOYLE:  It has, Your Honour, yes.

DEANE J:  I mean, what if the person who made the implied

assertion subsequently denied what was implicit in what

he did? Say, for example, here if a quarter of an
hour after the conversation the little boy had said,

"No, that was not little Paul at all. It was my

natural father", forgetting the fairness of the Crown,

this submission would lead to a situation where the

evidence indicating that it was Paul would have been

admissible, but the much stronger evidence of his
subsequent statement that it was not Paul would not

have been admissible if objected to.

MR DOYLE:  Yes. Your Honour, I accept that, that there are

problems and, as I indicated in the outline, when one

A1T5/7/HS	35	25/8/88
Walton

looks at the relevant policy factors, they do not really

point one very clearly in any direction because, if

ability to cross-examine is important, then obviously

one would like in many of these situations to

cross-examine the speaker of the words.

DEANE J:  But in that example I gave you,a judge really would

simply have to say, "I don't care about the hearsay

rule. I am going to admit that subsequent statement".

MR DOYLE:	Yes, in fairness to the accused, yes, Your Honour.
DEANE J:	Well there is something wrong when the law leads to

that situaion.

MR DOYLE:  Yes. Your Honour, I accept wholeheartedly that

problem, and yet, on the other hand, in my respectful
submission, there is something wrong when one cannot

prove the presence of a person or that a person was

being spoken to by reference to the fact that certain

words were used.	I recall in arguing this matter in
the Court of Criminal Appeal the	Chief Justice put

an illustration which, in my submission, is fairly

compelling. If it is relevant to prove that on a

particular night I was seen talking to a particular
person, I am standing under a street lamp, the person

I am talking to is out of the light of it and in the

shadows and I am heard to say, "Hello X, pleased to see

you here", and things which all indicate that I am

talking to X, it would seem odd if none of that could

be used to prove that I was talking to X at that time.

DAWSON J:  In the example Justice Deane gave to you, if it were

not a 2-year-old boy of course you could call the person

to deny the inference which was sought to be made.

MR DOYLE:	Yes.
DEANE J:	Not if he was dead.

DAWSON J:  Not if he was dead, or not if he was two years old,

and if those were the circumstances, then perhaps the

evidence should be excluded under the discretion in the

first place, but normally it would not produce the

anomaly.

MR DOYLE:  No, not normally, but I acknowledge that there would

be situations where great hardship would be done if,

in the end, the judge admitted the evidence - - -

DAWSON:  That may be reason for not admitting it in the first

place, in those circumstances.

MR DOYLE:	Yes, I accept that would seem to be the practical solution, and again I acknowledge, Your Honours, that
it is difficult to maintain consistency here, but the
courts do regularly admit evidence of conduct when the

AlTS/8/HS	36	25/8/88
Walton

only basis for admitting the evidence of conduct is

to draw a conclusion about the state of mind of the

actor, when the actor is not there to be cross-examined.

Some would say it just should not be admitted.

In WRIGHT's case Baron Parke gave the example of a

case where it is relevant to prove whether a ship

was seaworthy, or was seaworthy at a given time, and

the evidence led is that the captain of the ship was

seen to make a very close inspection of it and then

board it with his family.

Now, Baron Parke took the view that that evidence

was inadmissible, and that at least is logical and

consistent. Others would say it is admissible, and

yet when you look at it, what is it admitted for but to prove that at that moment the captain thought the

ship was seaworthy and if he had boarded it saying,

"She's shipshape,shipmates", again, you are just putting

in words what you are seeking to prove from his conduct.

DAWSON J:  Yet, looking at it from another direction, from

the point of view of making an inference, it may be

such that you could not really draw any inference from

that conduct at all and so it should not be admitted.

MR DOYLE:  Yes. Clearly, if you cannot draw the inference

then, in my respectful submission, you have solved the

problem and the evidence should just be excluded,

but Baron Parke was postulating a case where it was a

relevant matter and presumably he was saying,
"Let's assume from other points of view the evidence

would support the inference". Obviously, if in the

end the conduct is open to a number of interpretations,

then it should simply be excluded, one would think, because no inference could safely be drawn from it. But, I am simply giving these illustrations to

indicate to the Court that I accept that it is difficult

to lay down a rule which will, in all situations,

produce the desirable result without perhaps a good

deal of judicial common sense and discretion. On the other hand, if one leans too quickly towards excluding

such evidence another inconsistency emerges, that

conduct is often used in the same way, and one also

produces what to many would seem a rather non-sensical result, that what many people would regard as the very best evidence of a fact, namely the words used in a

conversation,could not be used to prove who is being

spoken to, even though the words are not being led in

court in the traditional hearsay sense of the person

saying, "I was just talking to Bill"; you are simply

using the very words he used in the conversation on an

occasion when one would tend to think he would have no

particular reason to fabricate the person to whom he

was talking.

In my submission, this is a matter which, while

itvJOUld only occur from time to time, is of some

significance and I would urge the Court, if it saw fit,

to hold that perhaps in cautious terms, because one

AlTS/9/HS	37	25/8/88
Walton

just could not lay down a completely general rule,

but to hold that generally, at least in cases like the

present, evidence may be led of such a conversation

when it contains an implied assertion and that it does

not infringe the hearsay rule.

Your Honours, the third category of words I have

dealt with in the outline simply for completeness but

I do not seek to develop those submissions. Before

the Court of Criminal Appeal I conceded that the

third category were not admissible. Thinking about it

further it has occurred to me that arguably they were

because if she hangs up the phone and says, "I've just

been talking to Paul. He wants me to meet him"

perhaps - and I only say perhaps - you could use that

as evidence of her intention, but you would have to
make it very clear to the jury how you were to use it,
but I do not seek to develop that.

Your Honours, if some of that evidence was not admissible, it is my respectful submission that

nevertheless in the end the Court could be satisfied,

as was the Court of Criminal Appeal, that there has been

no miscarriage of justice here. The evidence of the

accomplice was quite damning evidence because her

evidence was, in effect, in a nutshell, he came home,

said, "I've killed her", he was splattered with blood,

he had a blood-stained hammer, there was a blood-stained

rock in the car, and the case, Your Honours, was

opened to the jury by the prosecutor on the basis that if

they accepted her evideRce then they were likely to

convict, but if they rejected her evidence that was the

end of the case.

In my respectful submission, while these phone

calls could be seen as providing some corroboration
of her evidence it is hard to conceive of a juror

deciding to believe the accomplice on the basis of the

phone calls. One tends to think as a matter of common

sense that the jurors would have listened to her

evidence as a whole, seen how her knowledge of the

crime matched up with the facts and then decided whether

they believed her or not.

(Continued on page 39)

AlTS/10/HS	38	25/8/88
Walton

MR DOYLE (continuing):  The final point I would make in

relation to that, Your Honours, is that the

summing up of the judge on this matter was simply

so strong that it removed any possibility of a

miscarriage of justice. Could I just refer briefly,

Your Honours, to the passages of the summing up?

They are identified in the outline and again, I

am afraid I have used the pages of the original

transcript, not the book. It is page 725 in book 4.

There, in the middle of the page, he begins to talk

to them about what he calls:

Lorraine's utterances.

He then summarizes them for the jury and then at

page 735, at the bottom of the page says:

The first matter and the matter of great

importance, is that I must direct you that

as a matter of law there is no evidence

available to you to come to the conclusion

that the accused rang the deceased on that

Wednesday or indeed on the Thursday or any day relative to a meeting at the town

centre ..... Lorraine is dead, Michael is

too young and they -

the persons -

who made the call of course, were the only

people who spoke on the phone who might be

able to identify the maker of that telephone

call.

So he clearly was excluding any possible use of it

apart from evidence of her intention. Then he goes

on to deal with the evidence a little further, and

then at page 737 he explains to them the use to

which the evidence might be put, and this is at the

bottom of page 737:

Her intentions and her expectations are

therefore relevant facts and her utterances to
these four witnesses	is SOIJE evidence tending

to prove her state of mind and her intentions at the time when the respective conversations

took place.

He goes on to say that the law allows such evidence

to be used in that fashion.	Then at the bottom of
page 738:

But you must bear in mind, ladies and gentlemen,

that her state of mind and her intentions and
her expectations are one thing; but that is not

the same as saying she did in fact meet the

accused on that date, at that time, at that

place or indeed on any other occasion.

AlT6/l/VH	39	25/8/88
Walton

And then in the middle of page 739:

But I must direct you, ladies and gentlemen,

that it would be wholly impermissible,

completely wrong, for you to use the statements
attributable to Lorraine and indeed the

statements attributed by Rhonda Bowett to

little Michael as evidence that it was

Paul Walton on the phone on that occasion.

So, in the end, in my submission, in a manner unduly favourable to the accused, His Honour closely confined the relevance of this evidence and restricted it

simply to proof of her intention and arguably left

the jury with the impression that they could not

even infer from the intention that she did, in fact,
achieve her intention. In my submission, it would

be quite permissible to use the evidence in that way,
but when one looks at the summing up, unless
statements of intention are themselves inadmissible,

then the summing up was as favourable to the accused

as it could have been, and so there could have been,

in my submission, no miscarriage of justice. They

are my submissions, if the Court pleases.

MASON CJ: Tha~k you, Mr Solicitor. Yes, Mr Debelle.

MR DEBELLE: There is nothing I wish to reply, Your Honour.

MASON CJ: Yes, well, the Court will take a short adjournment

in order to determine the course it will take in

this matter.

AT 12.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.13 PM:

MASON CJ: The Court will consider its decision in this matter.

AT 12.14 PM THE MATTER WAS ADJOURNED SINE DIE

AlT6/2/VH	40	25/8/88
Walton