Court of Appeal (WA)|2011-05-09|Before: Lure P, Pullin JA, Mazza J

BROWN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 111 (9 May 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BROWN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 111

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Motor vehicle manslaughter - Rule against hearsay - The admissibility of outofcourt third party confessions

Criminal law - Appeal against sentence - Motor vehicle manslaughter - Whether sentence of 8 1/2 years' immediate imprisonment manifestly excessive

Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96

Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1

Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123

Beamish v The Queen [2005] WASCA 62

Chan v The Queen (1989) 38 A Crim R 337

Farmer v The State of Western Australia [2007] WASCA 219

Fernandes v The State of Western Australia [2009] WASCA 227

Greatorex v The Queen (1994) 74 A Crim R 496

Manufekai v The Queen [2006] NTCCA 7; (2006) 196 FLR 460

Myers v Director of Public Prosecutions [1965] AC 1001

Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48

Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558

R v Condren; Ex parte Attorney-General [1991] 1 Qd R 574

R v Freer and Weekes [2004] QCA 97

R v Golightly (Unreported, WASC, Library No 970040, 14 February 1997)

R v K; Ex parte Attorney-General (Qld) [2002] QCA 260; (2002) 132 A Crim R 108

Sabau v The State of Western Australia [2010] WASCA 3

Subramaniam v Public Prosecutor [1956] 1 WLR 965

Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v Butler [2009] WASCA 110

The State of Western Australia v Garlett [2007] WASCA 274

Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283

Wilson v The State of Western Australia [2010] WASCA 82

1 McLURE P: I agree with Mazza J. I have some short additional observations in relation to the merits of the proposed appeal against sentence.

2 The sentencing judge made very detailed, unchallenged factual findings for the purpose of sentencing the appellant. The circumstances of the appellant's offending are at the high end of the scale of seriousness. The collision occurred on a fine, clear evening on a very well-lit, straight dual carriageway. The headlights of the LandCruiser driven by the appellant and the headlights and tail lights of the motor cycle driven by the deceased were on and operating. Both vehicles were travelling in the same direction in the left-hand lane of the dual carriageway. The appellant had ample opportunity to observe the presence of the motor cycle. The vehicle driven by the appellant struck the motor cycle from behind without any deviation, deceleration or braking. No steps were taken to avoid the collision. After initial contact with the motor cycle, the vehicle driven by the appellant continued for almost 250 m with the motor cycle entangled between its front wheels. The appellant's manner of driving was grossly aberrant.

3 The sentencing judge accepted the evidence of Professor DA Joyce, a specialist in clinical pharmacology and toxicology. A sample of blood taken from the appellant shortly after the collision indicated the presence of methylamphetamine at a very high concentration (0.66 milligrams per litre). Professor Joyce described that as indicative of a chronic, heavy user of methylamphetamine. Referring to the evidence of Professor Joyce, the sentencing judge continued:

He spoke of the characteristics of being under the influence of methylamphetamine to such a degree, those characteristics including indifference to risk and over-confidence. Chronic, heavy users, he said, are given to bizarre behaviour. Such people are also susceptible to distraction, missing detail that ordinary people would not (ts 23).

4 The sentencing judge accepted Professor Joyce's opinion that the appellant was intoxicated with methylamphetamine while driving and as a result was incapable of proper control of the vehicle.

5 At the time of the offence the appellant was neither young nor of prior good character. She had a long-term substance abuse problem that had a causal connection with much of her antisocial and criminal behaviour. The sentencing judge found that the appellant had no genuine remorse or empathy and no demonstrated rehabilitation. Significant

weight had to be given in this case to the sentencing objectives of personal as well as general deterrence.

6 The range of sentences customarily imposed for comparable offences is only one of a number of relevant factors in the determination of whether a sentence is manifestly excessive. Thus, the range of sentences customarily imposed does not establish the range of a sound sentencing discretion: Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465; Fernandes v The State of Western Australia [2009] WASCA 227 [15]; The State of Western Australia v Akizuki [2008] WASCA 267 [71]. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors: Sabau v The State of Western Australia [2010] WASCA 3 [18].

7 When regard is had to the seriousness of the circumstances of the appellant's offending, the absence of mitigating factors and the need in this case for both personal and general deterrence, it cannot be said that there is any relevant inconsistency with sentences imposed in comparable cases or that the sentence is manifestly excessive.

9 MAZZA J: The appellant applies for an extension of time to appeal and appeals against conviction and sentence.

10 Each appeal was filed almost one year out of time. The delay is gross by any measure. The delay is explained in the affidavits of Peter Ben Cassidy, the appellant's solicitor, sworn 27 and 28 April 2010. It appears from those affidavits, and the materials annexed to them, that the appellant wished from the outset to pursue appeals against her conviction and sentence, and that she has attempted to pursue them. However, because of the lengthy delay, an extension of time should not be granted unless it can be shown that a failure to do so will result in a miscarriage of justice.

11 The appellant was charged on indictment with the unlawful killing of Keith Murray Garden on 1 December 2006. On 10 February 2009, after a trial before his Honour Eaton DCJ and a jury in the District Court

of Western Australia, the appellant was convicted as charged. On 24 April 2009, she was sentenced to 8 1/2 years' immediate imprisonment, with effect from 10 February 2009. She was made eligible for release on parole.

12 The appeal against conviction relies on only one ground. Leave to appeal was granted on 23 July 2010. The ground is as follows:

The learned trial Judge erred both in law and fact when he directed the jury that confessional statements made by someone other than the Appellant were not admissible as to the truth of their content;

Paul Victor Pitassi ('Pitassi') was called to give evidence by the State;
Pitassi was a passenger in the vehicle being driven by the Appellant ('the Vehicle');

the defence case was that Pitassi pulled the steering wheel of the Vehicle and caused the Vehicle to strike the deceased's motorcycle;

the defence called two witnesses who testified that Pitassi had confessed to them to the effect of c) above ('confessional statements');
His Honour directed the jury the confessional statements could not be relied upon to prove the truth of their content;
but the confessional statements fell within an exception to the rule against hearsay;
the confessional statements were capable of being evidence of the truth of what was said and to direct otherwise was an error.

13 With respect to the appeal against sentence, it is alleged that the sentence was manifestly excessive.

14 The facts, for the purposes of this appeal, are not in dispute.

15 On 1 December 2006, Mr Garden, the deceased, was at an address in Balga, socialising with an old school friend, Dale Howell. Mr Howell suggested that Mr Garden accompany him to a party at a friend's house in Inglewood. Mr Garden agreed to this proposal. He left the house first, riding his fairly new black and orange KTM 525 motorcycle. Mr Howell followed, driving his Ford Falcon sedan. Mr Garden was an experienced and competent motorcycle rider.

16 The two men became separated. Mr Howell, assuming that Mr Garden was ahead of him, continued on. Once at the party, Mr Howell realised that Mr Garden was not there. He tried to contact Mr Garden on his mobile telephone, without success. A short time later, he tried again and, this time, his call was answered by a stranger, who informed him that Mr Garden had been in a motor vehicle accident. Mr Howell drove immediately to the scene.

17 On arriving at the scene, Mr Howell saw the appellant sitting in the gutter crying and saying, 'I'm sorry, I'm sorry'. He ran to his friend and helped lift him onto a stretcher. Mr Garden was taken to hospital, where he later died.

18 Earlier that evening, the appellant had met with a friend of hers named Paul Pitassi, at a house in Girrawheen. Both the appellant and Mr Pitassi were long-term users of methylamphetamine. Their intention was to travel in Mr Pitassi's relatively new Toyota Landcruiser GXL four-wheel drive station wagon to the Burswood Casino. On the way to the Casino, they stopped off briefly at the appellant's mother's residence. From that point on, the appellant was driving the vehicle and Mr Pitassi was next to her in the left front passenger seat.

19 The four-wheel drive turned into Central Avenue, Mount Lawley, and proceeded in an easterly direction. Central Avenue is a dual carriageway, which is straight and very well lit. The weather was fine. Mr Garden was travelling on the same road, in the same direction. Both he and the four-wheel drive being driven by the appellant, were in the left-hand lane, each with their headlights on. Mr Garden's motorcycle's tail-lights were operating. Without any sign of braking, deceleration or attempt on the part of the appellant to avoid a collision, the four-wheel drive effectively ran down Mr Garden's motorcycle from behind. The initial point of contact between the two vehicles was with the front bumper bar of the four-wheel drive, to the left of centre, with the rear tyre of the motorcycle. The motorcycle and its rider fell onto the road, and disappeared under the bumper of the four-wheel drive, becoming entangled between its front wheels. From the point of impact, the four-wheel drive travelled almost 250 m before coming to a rest on the footpath, on the wrong side of the road, having passed through an intersection. The motorcycle was locked onto the undercarriage of the four-wheel drive. Mr Garden's body had somehow been ejected from the left side of the vehicle, about 150 m from where the collision occurred.

20 A sample of the appellant's blood, taken shortly after the incident, indicated the presence of methylamphetamine, with a blood concentration of 0.66 milligrams per litre. According to Professor Joyce, a toxicologist called on behalf of the prosecution at trial, this was one of the highest readings he had seen in his approximately 20 years of experience. He said that a person with that level of intoxication was almost certainly a chronic heavy user of the drug: ts 314. In his opinion, the appellant's blood concentration 'unambiguously indicated intoxication': ts 315. Professor Joyce stated that the circumstances, as he understood them to be, of the impact of the appellant's vehicle and the motorcycle were 'consistent with the indifference to risk and distractability that accompanies methylamphetamine intoxication': ts 315. He said that, 'It is my ... opinion that [the appellant] was intoxicated with methylamphetamine whilst driving and was incapable of proper control of the vehicle as a result': ts 316.

21 On 5 December 2006, the appellant was interviewed by police. The interview was recorded, and the recording was played at trial as part of the prosecution case. The appellant was asked to recount in her own words what occurred. This is what she said:

When we'd left mum's he jumped in the driver's seat and I said to him, 'You may as well let me drive,' and I - we ended up swapping seats there at me mum's and I drove from there and, ah, I don't even think we stopped to get fuel or anything, no. We just started driving on Alexander [Drive] and I was driving - I was driving fairly slow and then I remember turning onto Central [Avenue] and I've gone to light a cigarette. I've tried to pick up the lighter or something and I've sort of leant - reached down near my feet to grab the lighter and then, I don't know, it was just like all of a sudden he was there in front of me. I've clipped his tail end and I've panicked. I - I thought he was sort of minced up under - under the car and like I tried to sort of go over the top of him so that he wasn't stuck under the car and it just felt like he was under the car and it - I dunno, I screamed and panicked and sort of everything was just sort of happened so quickly from there and next thing I knew we were across the other side of the road and I was sort of - thought I was in the bush. And I've gone to go and get out my door because it was all dark on my side because of the shrubs. It was - I didn't know what I was gonna see underneath and I sort of panicked and I sort of - I don't even know which - I think it was the passenger door I've jumped out because my side was facing all the shrubbage and, yeah, I sort of just didn't wanna look. Sort of screamed and - and then like I've looked up and seen people going over the road and they said that he was still all right and I never even realised he had passed away until it was in the paper. Everyone had told me that he was still all right, even when I left the hospital they told me that he was all right (blue AB 40 - 41).

22 When asked about her illicit drug consumption, the appellant told the police that she thought that she had taken 'just a couple of points': blue AB 54. When asked about the effect that had on her, she said, 'sort of makes me feel normal': blue AB 54.

23 She made no mention, in her interview, of Mr Pitassi grabbing hold of the steering wheel and causing the four-wheel drive to swerve and hit Mr Garden. Nor did she say that Mr Pitassi administered to her a dose of methylamphetamine immediately after the accident, in order to calm her down.

24 Mr Pitassi was called by the State to give evidence. In evidence-in-chief, he said that, just prior to the accident, he was trying to tune the vehicle's stereo system. He said that he heard something, looked up and saw the end of a motorcycle in front of him. He said that he had not seen any sign of the motorcycle before he heard the impact. He said that the four-wheel drive was 'bouncing'. He said that the appellant took her hands off the steering wheel and that he grabbed it and veered the car over a traffic island, to a stop on the verge on the other side of the road. He said that neither he nor the appellant had any amphetamines at the scene of the accident. He denied having any contact with the steering wheel before the crash.

25 In cross-examination, defence counsel put to Mr Pitassi that, a few days prior to the crash, a man named Craig Ugle had stolen his KTM motorcycle from a house in Mirrabooka belonging to Tanya Taylor. He suggested to Mr Pitassi that, as the four-wheel drive was travelling along Central Avenue, the motorcycle being ridden by Mr Garden passed the four-wheel drive to its left, as the four-wheel drive was preparing to move into the right-hand lane. At that point, defence counsel suggested, Mr Pitassi said, '[t]hat's my fucking bike' and 'I am going to kill that fucker. I wish I was driving'. Defence counsel put to Mr Pitassi that, at that point, he grabbed the steering wheel with both hands and turned the vehicle sharply to the left, so that it collided with the rear of the motorcycle. Defence counsel suggested that, when Mr Pitassi grabbed the wheel, he pushed the appellant back into the seat and deprived her of control of the vehicle.

26 Mr Pitassi denied all these suggestions and maintained that his evidence-in-chief was true.

27 Defence counsel further suggested that Mr Pitassi had said to a fellow methylamphetamine user, Leah Kirwan, the morning after the crash, 'I got the fucking cunt that stole my bike. You should have seen him get sucked under the car. The guy on the bike pulls up next to my car laughing at me so I pulled the steering wheel and ran him over'. Mr Pitassi said that he definitely did not say these words. Defence counsel also put to Mr Pitassi that, in the weeks following the crash, he told another person, Jade Savage, on two occasions that he had deliberately seized the wheel of the Landcruiser and deliberately collided into the motorcycle. Mr Pitassi denied making these statements. It was also suggested to Mr Pitassi that he had told Jade Savage that he had given the appellant a lot of drugs immediately after the accident, '[t]o fuck her head up so she would say what I wanted her to say'. Mr Pitassi denied saying this to Ms Savage. He denied that he had administered methylamphetamine to the appellant after the crash.

28 The appellant did not give evidence at trial, but called four witnesses, of whom only three are relevant for present purposes, namely Jade Savage, Tanya Taylor and Leah Kirwan, to give evidence in support of the defence case.

29 Ms Savage said, in evidence-in-chief, that she had known Mr Pitassi for 18 years. She said that she had '[a]bout two, maybe three' conversations with Mr Pitassi after the accident in 2006. The first conversation took place at her house in Craigie. She said that he told her that something bad had happened and that he was upset, and he felt really bad about an accident that happened in his car. He allegedly told her that his motorcycle had been stolen and he was very angry, because '[he] had had enough of people stealing his things'. He told her that, on the night of the alleged offence, he and the appellant were driving in his car, looking for the person who had stolen his motorcycle. He said that they saw a guy riding his bike and that they drove after him to get him. He allegedly said that he grabbed the steering wheel and pulled it towards the guy. After the incident, Ms Savage said that Mr Pitassi told her that he had given the appellant a 'big shot of speed' to 'fry her brain', so that she would say what he wanted her to say.

30 The second conversation occurred around two weeks after the first conversation. Ms Savage's recollection of this conversation was as follows:

Just that he told me that he - like he never - or he told me that he felt like these people were different than us. That they deserved basically to - well, so like - well, he didn't want to go back to gaol and he was saying that it was better for them to take the blame for it than him because they're different people than us (ts 379).

31 Ms Savage admitted to a minor criminal history, including possession of drugs, driving without a licence and, as she put it, '[o]bstructing the course of justice'. This last matter concerned her misleading police as to the whereabouts of her boyfriend: ts 392.

32 Tanya Lee Taylor, who was also a user of amphetamines, said that, at the time of the accident, the appellant was living at her house. She said that Mr Pitassi would visit the appellant there. She said on one occasion after they had gone out, Mr Pitassi left his motorcycle on a trailer in her garage. Once they left, Ms Taylor said that she called a friend to come and steal the bike. She said she did this because she did not like Mr Pitassi, and she did not like the company that the appellant was bringing home. She said that she heard the motorcycle being taken away from her house.

33 In cross-examination, she was asked when the motorcycle was stolen. The State prosecutor suggested to her that it was stolen in mid-December after the commission of the alleged offence, but Ms Taylor said that the motorcycle had been stolen 'the night before the accident': ts 405. She could not, however, recall the date.

34 Leah Kirwan said in her evidence-in-chief that, on the day after the accident, Mr Pitassi came to her house. She said that he was, at the time, 'off his face'. She said that Mr Pitassi said to her, 'I got the guy that got my bike'. She said that he told her that he had grabbed the steering wheel, yanked it and he watched him (Mr Garden) get sucked underneath the car. Ms Kirwan said that the actual words used by Mr Pitassi were, 'I got the prick that got my bike'. Ms Kirwan admitted to a number of prior convictions, including convictions for attempting to pervert the course of justice and armed robbery in company.

The admissibility of the evidence of Ms Savage and Ms Kirwan is raised at trial

35 The first time the evidentiary purpose of eliciting Mr Pitassi's out-of-court statements was raised was during the evidence-in-chief of Ms Savage. The State prosecutor, in the absence of the jury, made what his Honour understood to be a Browne v Dunn (1893) 6 R 67 HL objection. In the course of her submissions in support of this objection, it is clear that she thought that the evidence was being elicited to attack the credibility of Mr Pitassi. She thought that the purpose of calling Ms Savage was to contradict Mr Pitassi's evidence that he had not confessed to Ms Savage.

36 Defence counsel told his Honour, in response to the objection, that, '[t]his evidence is led not by way of, or to the point of proving Mr Pitassi to be an unreliable witness, it's led to prove in terms of Beamish v Queen [Beamish v The Queen [2005] WASCA 62], that he is the person who committed this crime': ts 381.

37 The State prosecutor submitted that defence counsel had not complied with the provisions of s 21 of the Evidence Act 1906 (WA), to which defence counsel responded, '[m]y learned friend misunderstands the point. I'm not interested in proving a prior inconsistent statement': ts 382.

38 There was further discussion between his Honour and counsel. His Honour was not asked to rule on the admissibility of the evidence and made no such ruling. He was more concerned about whether defence counsel had complied with the rule in Browne v Dunn.

39 Although a number of legal matters were raised by counsel prior to his Honour summing up, the evidentiary purpose of the evidence of Ms Savage and Ms Kirwan, and what direction was required in relation to it, was not one of them.

40 During the course of the summing up, his Honour gave the following direction, which the appellant alleges was wrong in law:

Mr Pitassi was asked whether he'd said certain things to Leah Kirwan and to Jade Savage, and he denied that he said those things. Both Leah Kirwan and Jade Savage were called to give evidence of those alleged conversations, and they did so. Both were cross-examined about them. Please bear in mind that it is what Mr Pitassi said under oath in this court which is his evidence, not what he may have said to Ms Savage or Ms Kirwan.

If you are satisfied as to their truthfulness and accuracy, then you might well conclude that Mr Pitassi was lying and his denials of what they said he said to them in the days after the accident. If that be the case, then that might well cause you to very carefully scrutinise the remainder of what he had to say under oath.

His credibility is very much under challenge in this case, as you've heard during the course of his cross-examination and in what [defence counsel] said to you in his closing speech. If you accept that he did say such things to Ms Savage and Ms Kirwan, those statements may not be relied upon to prove the truth of their content, but they may well have a significant effect upon his credibility. That is why those statements were put to him. Ultimately, whether what you make of the allegations that he made those statements and whether or not what was said gives rise in your mind to a reasonable doubt is a matter for you (ts 498). (emphasis added)

The effect of his Honour's direction was to instruct the jury that if they accepted the evidence of Ms Savage and/or Ms Kirwan, that evidence could be used by the jury to assess Mr Pitassi's credibility, but the evidence was not to be used for testimonial purposes, that is, as proof that Mr Pitassi, and not the appellant, had committed the offence.

41 After the jury retired, defence counsel submitted to his Honour that the direction was incorrect and that his Honour should have instructed the jury that the evidence was admissible for its testimonial purposes. His Honour was not persuaded to redirect the jury and did not do so.

Counsel's submissions on the appeal against conviction

42 Mr Watters, on behalf of the appellant, accepted that the evidence of Ms Savage and Ms Kirwan was hearsay. While the evidence was admissible under s 21 of the Evidence Act as proof of prior inconsistent statements by Mr Pitassi, he submitted that their testimony was also admissible to prove the truth of the statements made by Mr Pitassi. He submitted that the evidence was of a confessional nature and therefore fell within the recognised exception to the rule against hearsay which admits evidence of a confessional nature against the maker.

43 Mr Watters urged this court to follow a line of cases from Queensland where evidence of an out-of-court confession by a person not charged with an offence has been held to be admissible for testimonial purposes. In support of this submission, he cited R v Condren; Ex parte Attorney-General [1991] 1 Qd R 574; R v Zullo [1993] 2 Qd R 572; R v K; Ex parte Attorney-General (Qld) [2002] QCA 260; (2002) 132 A Crim R 108; and R v Martin [2002] QCA 443; (2002) 134 A Crim R 568.

44 Mr Watters also sought to draw support from the High Court cases of Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1; and Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96 [55] footnote 33 (Gaudron J).

45 Mr Dempster, on behalf of the respondent, submitted that the evidence of Ms Savage and Ms Kirwan was hearsay and was inadmissible for testimonial purposes.

46 Mr Dempster submitted that this court was bound by the High Court's decision in Bannon v The Queen, in which the court declined to extend the hearsay rule to make admissible, evidence of an out-of-court confession by a third party and, thus, the appellant's ground of appeal is unsustainable.

47 Mr Dempster submitted that, in light of Bannon v The Queen, the Queensland authorities cited by the appellant should not be followed in Western Australia.

48 Mr Dempster accepted that, in some jurisdictions in the United States of America and Canada, evidence of an out-of-court confession by a third party was admissible. However, according to the various tests laid down for the admissibility of such evidence, he submitted that the evidence in this case would still be inadmissible.

49 For ease of reference, I will refer to the evidence of Ms Savage and Ms Kirwin of their conversations with Mr Pitassi as 'the evidence'.

50 A generally accepted statement of the rule against hearsay is found in Subramaniam v Public Prosecutor [1956] 1 WLR 965, 970, as follows:

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

51 The rule is subject to common law and statutory exceptions.

52 The common law exceptions developed over centuries. By the latter part of the 19th century, nearly all the common law exceptions to the rule against hearsay had evolved. Courts have, since that time, been slow to create new exceptions. Having said this, new common law exceptions have been created and it cannot be said that the class of common law exceptions is closed: Myers v Director of Public Prosecutions [1965] AC 1001, 1020; and Cross on Evidence (8th ed) [31015] footnote 25.

53 Some of the statutory exceptions which have developed are in response to the rigours of the common law in this area, which were a barrier to proving facts contained in certain kinds of documentary records and in documents created automatically: see, for example, s 79C of the Evidence Act 1906 (WA).

54 The evidence sought to be admitted in this case, sometimes referred to as an out-of-court third party confession, is, leaving aside any exception, hearsay. The appellant sought to elicit the evidence for its truth. In other words, as proof that Mr Pitassi grabbed the steering wheel from the appellant, therefore taking control of the vehicle from her, and then deliberately ramming it into the motorcycle Mr Garden was riding.

55 Unless the rule against hearsay is relaxed or the appellant establishes that the evidence can somehow be accommodated as an exception to the rule, the evidence was not admissible to prove the truth of what was said by Mr Pitassi and his Honour's direction to the jury was correct.

56 Among the common law exceptions to the rule against hearsay is evidence of a voluntary confession made by an accused person. Another is admissions made by a party to proceedings against that party's interest. These exceptions are amongst those referred to in the passage cited by the appellant from Gaudron J's reasons in Adam v The Queen.

57 The appellant's written submissions rely on both these exceptions. This reliance is misconceived. Both exceptions require the maker of the statement to be a party to the proceedings. In this case, Mr Pitassi was not a party, so neither exception can apply.

58 In Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 293; R v Benz [1989] HCA 64; (1989) 168 CLR 110, 143 - 144; and Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 565 - 566, some members of the High Court, in some judgments, proposed a relaxation of the rule against hearsay. The proposed relaxation would allow hearsay evidence to be admitted where the trial judge considers that it has a high degree of reliability: see, for example, Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 (Malcolm CJ [257] & Wallwork J [332] - [334]. However, cf Owen J [342]). There is, as yet, no High Court case which states that such an approach may be taken. Nor has the High Court yet recognised out-of-court third party confessions as an exception to the rule against hearsay.

59 The issue of the admissibility of out-of-court third party confessions was considered by the High Court in Bannon v The Queen.

60 In that case, the appellant and a Ms Calder were charged with the murder of two people. Each accused asserted that the other was solely responsible for the killings. Ms Calder made out-of-court statements which might have been understood as an acceptance that she was solely responsible. The trial judge directed the jury that what was said out of court, in the absence of the co-accused, was not admissible in the trial of the other accused. It was submitted that this direction was erroneous and that the jury should have been directed that Ms Calder's out-of-court statements were admissible as evidence of their truth in the case of the appellant.

61 Counsel for the appellant in Bannon accepted that none of the exceptions to the rule against hearsay recognised in Australia allowed Ms Calder's statements to be used in the appellant's favour. Counsel nevertheless submitted that the evidence was admissible, and his Honour should have directed the jury accordingly. It was submitted, having regard to some of the statements made in Walton, Benz and Pollitt that the rule against hearsay should be applied flexibly. Moreover, it was said the High Court should recognise, as exceptions to the rule against hearsay, declarations made against penal interest and hearsay evidence that is necessary and reliable. In relation to these exceptions, counsel relied upon decisions of the Supreme Court of Canada and courts in the United States of America.

62 In their joint judgment, Dawson, Toohey and Gummow JJ (with whom Deane J generally agreed), clearly stated the common law as it exists in this country:

As the law stands in this country, there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or by a third party (22).

63 Their Honours did not adopt a flexible approach to the hearsay rule, but did not expressly reject it.

64 They analysed the Canadian and United States authorities which recognised the exceptions which counsel for the appellant urged upon the court. They concluded that even if those exceptions were to be incorporated into the common law of Australia, having regard to the facts of the case, the evidence would still be inadmissible.

65 Dawson, Toohey and Gummow JJ stated that it was unnecessary and inappropriate for the court to decide whether to follow the decisions in Canada and the United States which extend the exceptions to the rule against hearsay to third party confessions: **Bannon (**28).

66 Brennan CJ affirmed the position that he took in Pollitt and rejected the flexible approach to the hearsay rule. He stated that he would not adopt an exception to the hearsay rule based on reliability and necessity. He left open the question of whether a statement against penal interest should be recognised as an exception to the hearsay rule. His Honour came to the same conclusion as the plurality that Ms Calder's statements were inadmissible.

67 McHugh J said it was unnecessary to decide whether a more flexible approach to the hearsay rule should be taken, and whether an exception based on necessity and reliability should be adopted in Australia. His Honour concluded that, on the facts of the case, none of the bases upon which the appellant relied were made out.

68 Bannon provides no support to the appellant. It does not mandate a more flexible approach to the admission of hearsay evidence and does not expand the common law exceptions to the hearsay rule. The case clearly states that the law as it stands in Australia is that out-of-court third party confessions are hearsay and inadmissible.

69 The court in Bannon left open the possibility that in the future out-of-court third party confessions may be admissible. This position was expressly acknowledged in the recent case of Jones v The Queen [2009] HCA 17; (2009) 254 ALR 626 [19].

70 The issue is one for the High Court and not for this court to decide. This court, as was the learned trial judge, is duty-bound to follow Bannon until the High Court says otherwise: Willis v The Queen [2001] WASCA 296; (2001) 25 WAR 217 [122]; and Manufekai v The Queen [2006] NTCCA 7; (2006) 196 FLR 460 [24]. It follows that in the present case, his Honour was right to instruct the jury that the evidence could not be relied upon by the jury as evidence of the truth.

71 However, even if the rule against hearsay was applied flexibly, and even if, as in Canada and the United States, the common law exceptions were extended to include statements against penal interest, and circumstances where the evidence was thought necessary and reliable, on the facts of this case the evidence would still be inadmissible. This is because the conditions which the Canadian and United States courts have stipulated for evidence of the type under consideration have not been met in this case.

72 The rationale which underlies the proposed extensions to the rule against hearsay is that there are some circumstances where, despite the hearsay nature of the evidence, it is nevertheless highly probative and likely to be truthful. However, there must be safeguards to protect against unreliable evidence.

73 In Walton, Mason CJ spoke of conditions of reliability and probative value: Walton v The Queen (293).

74 In Canada, before a declaration against penal interest is admitted, a number of conditions must be met. These conditions include that there must be a realisation by the declarant that the statement may be used against him or her, and that the declarant was unavailable or unable to give evidence: Bannon (35 - 37).

75 In the United States, where declarations against penal interest are admitted, conditions of admissibility vary, but all demand a requirement of reliability, such as corroboration or an awareness by the declarant that the statement being made was against penal interest: Bannon (37 - 38).

76 Where the necessary and reliable exception arises, 'necessary' means that there is no other source from which the evidence could be obtained, apart from the person to whom the statement was made: Bannon (39 - 40).

77 The evidence in the present case would not pass the reliability test common to all three posited exceptions to the rule against hearsay.

78 The appellant confessed to driving the vehicle at the time of the collision, four days after the crash. She said in her interview that Mr Pitassi did not interfere with her driving: blue AB 63. She denied that she was 'covering up' for him: blue AB 63. She told the police she was driving and that she reached for the lighter to light a cigarette. She said, 'all of a sudden he [Mr Garden] was there in front of me': blue AB 40, 46, 48. It was not suggested at trial that the confession was involuntary, nor was there any evidence before the jury which might reasonably explain why her admission to driving the vehicle might be false or in some way unreliable.

79 The evidence would also be inadmissible according to the Canadian and United States authorities because there is no evidence that when Mr Pitassi spoke to Ms Savage and Ms Kirwan, he realised that what he said might be used against him. Further, Mr Pitassi was available to give evidence. Indeed, he gave evidence at trial and was cross-examined by defence counsel. The hearsay evidence was not 'necessary', as that concept is understood in the cases. Finally, if there is a requirement of corroboration, there was nothing to corroborate the statements that Mr Pitassi was driving at the time of the collision.

80 For these reasons, even if the common law of Australia included the exceptions to the rule against hearsay proffered by the appellant in Bannon, none of them would assist the appellant in the present case.

81 Finally, for the sake of completeness, I will deal with the appellant's submission that this court should follow the line of authority from Queensland, which has already been referred to, where third party confessions have been held to be admissible.

82 There is no need to discuss those cases at length. This line of authority has not been followed elsewhere in Australia: see, for example, Greatorex v The Queen (1994) 74 A Crim R 496; R v Golightly (Unreported, WASC, Library No 970040, 14 February 1997) 11; and Manufekai v The Queen [23] - [24].

83 The reason for the different position in Queensland may be the existence of s 101 of the Evidence Act (Qld), which allows a prior inconsistent statement to be admitted as proof of the facts contained in that statement. Whatever the reason for the difference, I observe that recently in Queensland, in R v Freer and Weekes [2004] QCA 97, it has been suggested that evidence of an out-of-court third party confession should be subject to a reliability test, which encompasses an immediate prejudice requirement: R v Freer and Weekes [91].

84 This court is bound to follow the High Court's decision in Bannon. The Queensland cases do not assist the appellant in this case. Even if this court decided to follow the Queensland decisions, the appellant's case would fail on the requirement of reliability.

85 For these reasons, the ground of appeal has not been made out and the appeal against conviction fails. In light of the delay in bringing the appeal, I would not grant an extension of time.

86 The one ground of appeal alleges that the sentence of 8 1/2 years' immediate imprisonment was manifestly excessive. Leave to appeal was granted on 25 June 2010.

87 The appellant submitted that the sentence was manifestly excessive because:

(a) the appellant had not previously been convicted of similar charges, was 36 years of age when sentenced and had never previously been to prison;

(b) other than the appellant's amphetamine intoxication, her offending was not aggravated by other factors, such as gross breach of the road traffic rules, speed, driving on the wrong side of the road or contravening traffic lights or signals; and

(c) the seriousness of the appellant's criminal conduct was more in keeping with those cases towards the midpoint of the range of sentences customarily observed.

88 His Honour made detailed sentencing remarks. He accurately set out the facts of the appellant's offending and her antecedents. He referred to the evidence of Professor Joyce as to the effects of methylamphetamine generally and on the appellant herself.

89 His Honour found that the appellant's entrenched methylamphetamine addiction and its effects upon her on the night of the offence were the 'most significant, if not the only cause of the death of Mr Garden': blue AB 26. He acknowledged that Mr Garden's death did not result from a gross breach of traffic rules or regulations, and that it had not been proven that the appellant had been speeding at the time of the crash: blue AB 31. He found that the appellant drove in a state of heavy amphetamine intoxication: blue AB 29.

90 His Honour found that Mr Pitassi had not, as alleged by the appellant at trial, injected her with 3 grams of methylamphetamine or any quantity of that drug shortly after the crash which might explain the high methylamphetamine concentration in her blood: blue AB 26.

91 His Honour further found that there was no genuine remorse or victim empathy: blue AB 29.

92 He noted that no allowance could be made for a plea of guilty, and that there was no demonstrated rehabilitation of any significance: blue AB 30. His Honour did, however, accept that the appellant was willing to undertake intervention programs in prison.

93 His Honour considered that there was a need for both general and personal deterrence: blue AB 28 - 29 and 31.

94 His Honour made specific reference to Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48, and acknowledged that the penalty handed down in that case was the most severe penalty then imposed in Western Australia for motor vehicle manslaughter involving a loss of one life: blue AB 29.

95 The relevant appellate principles were set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They are well known and do not require repetition.

96 A complaint of manifest excess is a complaint of implied error on the part of the sentencer. To determine whether a sentence is manifestly excessive, it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentence customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the kind in question and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

97 The maximum penalty for manslaughter is 20 years' imprisonment.

98 There is no tariff for manslaughter, whether occasioned by the use of a motor vehicle or otherwise. This is because of the great variation which is possible in the circumstances of the offending and the offender: The State of Western Australia v Butler [2009] WASCA 110 [7].

99 In Penny v The State of Western Australia [80] - [87], Buss JA reviewed a number of appellate decisions in this State for cases of motor vehicle manslaughter.

100 There is no need to repeat that analysis here. Some, but not all, of the cases he examined followed pleas of guilty. Buss JA's review reveals that the post-transitional sentences imposed range from 2 years' imprisonment to 6 years and 8 months' imprisonment.

101 In Penny, the appellant, after entering a plea of guilty, was sentenced to 8 years' imprisonment. The appellant who, at the time of the offence was 25 years of age, and on parole, stole a car and drove it with his cousin sitting in the front passenger seat. He was observed by police officers in a marked patrol car, who pursued him. In order to evade the police officers, the appellant drove at high speed into a cul-de-sac. He then drove though a wooden barrier and shortly after that went through a stop sign. There was a crash and the passenger was killed. The appellant drove whilst under a disqualification and cannabis was detected in a blood sample taken from him. The appellant was described as having 'a very serious record of prior convictions', including a prior history of motor vehicle pursuits by police officers. The sentence was upheld.

102 Since Penny, a number of other cases have been decided in this court. I will refer to some of them.

103 In Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81, a total effective sentence of 8 years' imprisonment was imposed upon a 19-year-old offender who pleaded guilty to five counts of manslaughter. The appellant, while driving at a very high speed and having consumed drugs, collided with a vehicle, killing all five occupants of that car. The sentencing judge concluded that the collision had been caused by reckless driving occasioned by speed and the intake of drugs. His Honour took into account the appellant's pleas of guilty, his youth, antecedents, rehabilitation and remorse. The appeal was dismissed.

104 In Farmer v The State of Western Australia [2007] WASCA 219, the appellant appealed against a total effective sentence of 8 years 8 months' imprisonment, following his pleas of guilty to one count of manslaughter and 16 other indictable offences. For the manslaughter, he was sentenced to 5 years 4 months' imprisonment. That sentence was upheld on appeal, although the total effective sentence was reduced, for totality reasons, to 7 years 4 months' imprisonment. The manslaughter offence occurred in a stolen vehicle in which there were five passengers, including the appellant's girlfriend. While being pursued by police at speeds of up to 140 kph, he drove through several red lights and on the incorrect side of the road. The police aborted the pursuit. The appellant continued to drive at a minimum speed of 115 kph. He lost control of the vehicle, it went to the wrong side of the road, hit the kerb and then struck a power pole, killing the appellant's girlfriend and injuring some of the other occupants of the vehicle. The appellant was, at the time of the offending, 18 years of age. He was remorseful and had come from a dysfunctional background. There were prospects for his rehabilitation.

105 In The State of Western Australia v Garlett [2007] WASCA 274, the State appealed against a total effective term of 6 years' imprisonment for one count of manslaughter and one count of grievous bodily harm. The sentencing judge imposed 6 years' imprisonment for the manslaughter and 2 years 8 months' imprisonment for the grievous bodily harm, to be served concurrently. In that case, there was a confrontation between two groups. The two victims were in one of these groups and were armed with weapons. The respondent was alerted to the confrontation and drove to its location. He collided with one of the victims, breaking his leg. He then drove towards the deceased who was standing off the roadway. He struck the deceased and killed him. The respondent was sentenced on the basis that he had driven with gross recklessness. He pleaded guilty, was genuinely remorseful and had taken responsibility for his actions. He had no relevant recent record of prior offending. The State's appeal was dismissed.

106 Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123, although not a manslaughter case, concerned a sentence of 7 years 6 months' imprisonment that was imposed, after trial, for the analogous offence of dangerous driving causing death, contrary to s 59 of the Road Traffic Act 1974 (WA). This offence, like manslaughter, carries a maximum penalty of 20 years' imprisonment (when committed in circumstances of aggravation). In that case, the appellant, who had two prior convictions on separate occasions for dangerous driving causing death, struck a clearly visible pedestrian who was walking on a road verge. The appellant had been drinking, and at the time of the collision had a blood alcohol content of 0.187%. The sentence was not disturbed on appeal.

107 A review of the authorities shows that the sentence imposed upon the appellant is high. It is higher than any of the sentences imposed in the cases that I have mentioned. However, there were differences between those cases and the case at hand. For example, in Penny the appellant pleaded guilty. Had he been convicted after trial, the sentence imposed upon him would have been substantially higher than it was. In Taylor and Farmer, not only did the appellants plead guilty, but they were both very young and remorseful. These factors were absent in the present case. The respondent in Garlett pleaded guilty, was genuinely remorseful and had reasonable antecedents.

108 When an appellate court examines past cases, it looks for broad consistency. The sentence in question is, I think, broadly consistent with other bad cases of motor vehicle manslaughter.

109 In any event, a sentencer is not restricted in the exercise of his or her sentencing discretion by past cases. As the High Court has recently observed, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought, to sentence. Past sentences are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence: Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

The seriousness of the appellant's offending

110 In my opinion, the seriousness of the appellant's offending was not, as submitted by the appellant, in the mid-range; rather, it was of a high order of criminality. The appellant was a chronic user of methylamphetamine who chose to drive a motor vehicle while severely intoxicated by the drug. In the state that she was in, she posed a significant danger to her own safety, whoever may be travelling with her and other road users. There is no evidence that she was compelled to drive the vehicle on the evening in question, or that there was any necessity for her to do so. She was so intoxicated that she failed to see Mr Garden, whose motorcycle was clearly visible.

111 The appellant's antecedents are as follows. At the time the appellant was sentenced, she was 36 years of age. She has five children, who were then aged between 9 and 16 years. In 2000, her sister was murdered, and it was said, without challenge, that she had never dealt with the loss.

112 She has a long and entrenched illicit drug problem. At the time of the offence, she was reportedly using 1 gram of methylamphetamine per day. She told the pre-sentence report author that, at the time of the offence, she was involved in the sale or supply of illicit substances in order to fund her own drug use. After the commission of the current offence, she commenced using heroin and was using that drug until her incarceration.

113 The appellant has a lengthy criminal history which provides little, if any, mitigation. As an adult, she has been convicted of possession of a prohibited drug with intent to sell or supply, in 1993, 1994 and 2004. All of those offences were dealt with by fines. In addition, she was convicted of possession of a prohibited drug in 1994, 2002, 2003, 2004 and 2005. She has convictions for driving under suspension in 1996 and 2003 (three times). After the crash, but before trial, she was convicted of possession of amphetamine and methylamphetamine in September and December 2008, and possession of cannabis in December 2008. In November 2008, she was convicted of driving under the influence of alcohol: blue AB 25. She had never been previously imprisoned and had never been convicted of an offence in a superior court.

114 Both the pre-sentence report author and a psychologist who prepared a report for his Honour, Ms Julie Hasson, noted that the appellant continued to deny responsibility for the death of Mr Garden.

115 Ms Hasson further noted that, while the appellant acknowledged being under the influence of drugs at the time of the offence, she was unable to identify a link between her drug use and the consequences of her behaviour. Psychological testing undertaken by Ms Hasson revealed that the appellant has self-defeating, schizoid, dependent and antisocial features. In Ms Hasson's opinion, the appellant is at risk of further antisocial behaviour if she does not address the factors associated with her offending behaviour, most significantly her long-term problems with substance abuse.

116 The ultimate issue to be determined is whether the sentence of 8 1/2 years' imprisonment was within a sound sentencing discretion.

117 I will not repeat what I have already said about the seriousness of the appellant's offending.

118 There was no mitigation to be found in the circumstances of the offending, and little mitigation in her antecedents.

119 General and personal deterrence must play an important role in this case. The use of methylamphetamine in the community is unfortunately widespread. The drug, by its nature, has the capacity to make a driver overconfident, and yet diminish his or her powers of perception and ability to respond appropriately to events which occur on or about the road. Particularly for those who are habituated users, the effects of the drug can lead to bizarre and unexplained behaviour. The message which must be conveyed is that a person who drives in a state of drug intoxication, and in that state commits the offence of manslaughter, will generally be sentenced to a significant custodial penalty.

120 A concerning aspect of the present case is that the appellant does not seem to understand that her drug use adversely affects her behaviour. Notwithstanding the crash and its terrible consequences, the appellant continued to use drugs. Further, she drove under the influence of alcohol. There is, in my mind, a need to reflect public protection as well as personal deterrence in this case.

121 The sentence imposed by his Honour was, without doubt, high. However, in all of the circumstances of the case, I am not satisfied that it was outside the range of a sound sentencing discretion. I would dismiss the appeal. In light of the lengthy delay, I would not grant an extension of time within which to appeal.

122 In each appeal, I would not grant an extension of time within which to appeal. The appeals must be dismissed.

Adam v The Queen [2001] HCA 57;

At a glance

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Judgment (179 paragraphs)

BROWN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 111 (9 May 2011)

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Legislation Cited (1)

Cases Cited (12)