Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Impeachment of credit and admissibility of evidence as to credit - Prior consistent statement - Admissible as circumstantial evidence of truth of a fact if it contains special information tending to prove truth and is more than repetition of earlier statement.

The Nominal Defendant v Clemments [1960] HCA 39; (1960) 104 CLR 476; Alexander v R (1980 - [1981] HCA 17; 1981) 145 CLR 395, applied.

R v Georgiev [2001] VSCA 18, followed.

Judgment Number: [2003] TASSC 20

1 The Attorney-General seeks leave to appeal against the acquittal of the respondent on a charge of murder allegedly committed in May 1996 on the ground "that the learned trial judge erred in law in ruling that evidence that Tony Sturzaker told police in January 2000 the details of a confession made to him by the respondent was not admissible". At the trial, the learned Director of Public Prosecutions led evidence from Sturzaker that in May 1999 the respondent confessed to him that he had committed the murder of one Wesley Brooks, who had been an associate of his in certain drug dealings and who had disappeared in May 1996 not long after having received a payment of $40,000 damages, much of which he had invested in a motor car. That car had been transferred to another associate of the respondent and deceased, one Gillon, who had taken it to the Mainland to sell. The respondent claimed the deceased had sold him the car by way of discharging some drug debts. Evidence was led that the deceased's signature on the transfer form was a forgery.

2 The alleged confession was to the effect that the respondent had told Sturzaker he got his "big start" in the drug trade by "knocking off a young fellow by the name of Wes Brooks". He said they had a cash tin with drug profits in the bush, and that he had shot the deceased in the back of the head with a rifle Sturzaker had sold to him and that the respondent and his brother, Nathan, had then cut up the body with a saw and a meat cleaver and put it in a wheelie bin with lime, acids and cement. He secured it with "Tek" screws. Sturzaker and the respondent fell out and Sturzaker, becoming fearful for his life, went to the police and told them what the respondent had told him.

3 Sturzaker told the police of the respondent's confession on 27 January 2000. At this stage, the body had not been found and the deceased was merely classified by the police as a missing person. On 16 February 2000, police divers, who were not searching for such an object, happened upon a wheelie bin in the Leven River off the Ulverstone Wharf. The top of the bin was secured by Tek screws. The bin contained cement and the remains of the deceased. The entire head, six cervical vertebrae and the left arm below the elbow were missing. The bones showed signs consistent with being hacked by a sharp object and placed into the bin in what was described as a jumbled manner. There were also marks not inconsistent with a knife or other sharp instrument having been used to take flesh from the bone.

4 Parts of what Sturzaker told the police on 27 January 2000, that is before the retrieval of the wheelie bin, were placed on an information sheet the next day and included details of the cutting up of the body, the implements and the placing of the body and parts in a wheelie bin. The learned Director of Public Prosecutions sought to lead the date and detail of Sturzaker's relaying of this information in chief by way of evidence from Sturzaker himself, and also by way of oral evidence from the police officer to whom he had relayed the information. A voir dire enquiry was conducted before the trial proper commenced and the learned trial judge ruled that the evidence could not be led. That ruling is the subject of the appeal.

5 A prior statement of a witness may not, as a general rule, be given in evidence to confirm his sworn evidence (Cross, 6th Australian ed, par17250). To this rule there are a number of recognised exceptions such as evidence of recent complaint in sexual cases, evidence admitted to rebut a suggestion of recent invention, evidence of statements made as part of the res gestae and evidence of prior identification.

6 The development of the rule is explained by Windeyer J in Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476 at 490 - 491, where he said:

"The testimony of a witness, given on oath in the witness box, cannot ordinarily be supported by evidence that earlier and elsewhere he had said the same thing. In New South Wales in civil proceedings without a jury this principle has been qualified by the Evidence Act, s 14B (enacted by Act No 35 of 1954 s 2 (b)). But that provision has no application either in cases tried before a jury or to the evidence of interested parties. This case, therefore, depends upon purely common law rules which, like so much of the law of evidence, were firmly established only in the nineteenth century. The earlier doctrine, as stated in Hawkins, Pleas of the Crown, Bk. 2, c. 46, was that 'what a witness hath been heard to say at another time may be given in evidence in order either to invalidate or confirm the testimony that he gives in court'. And Gilbert CB took the same view in his Law of Evidence, published in 1756 (p. 153), saying that 'though hearsay be not allowed as direct evidence yet it be in corroboration of a witness's testimony to show that he affirmed the same thing on other occasions and that the witness is still consistent with himself'. But in R. v. Parker (1783) 3 Dougl 242 (99 ER 634) , Buller J. said that the passage in Hawkins 'is not now law' (1783) 3 Dougl, at p 244 (99 ER, at p 635) . And soon thereafter a more strict analysis of probative values showed that, although inconsistent utterances may undermine credibility, mere repetition of a statement does not tend to show it to be true. Thus the rule that prior consistent statements are inadmissible became settled. Here we are concerned with an exception to this rule. It is a recognized exception."

7 The exception before the court in that case was the admission of a prior consistent statement in rebuttal of a suggestion of recent invention and the court urged caution on the part of trial judges in determining whether recent invention had been suggested and in ensuring that the content of the prior statement was consistent with the witness's present account. The exclusionary rule is based fundamentally on the proposition advanced by Windeyer J and cited above that "mere repetition of a statement does not tend to show it to be true" (my emphasis).

8 Where, however, there is some feature about the previous statement which makes evidence of it, in addition to the witness's present testimony, more than mere repetition, it may become an exception to the rule. Thus complaints in sexual cases, although not evidence of the truth of the complainant's evidence at trial, are admitted because they are treated as capable of affording jury a means of assessing the consistency of the complainant's evidence and conduct, while evidence of prior identification is tendered to confirm the testimony of the identifying witness by showing its consistency with his previous act of identification. In Alexander v R (1980 - [1981] HCA 17; 1981) 145 CLR 395 at 405, Gibbs CJ said such evidence "seems to be admitted by analogy with the rule that allows evidence of complaints to be given in sexual cases or with the rule allowing proof of previous consistent statements to answer a suggestion of late invention".

9 In R v Georgiev [2001] VSCA 18, the Victorian Court of Appeal by majority dismissed an appeal in a murder case where evidence admitted to rebut a suggestion of recent invention was regarded by the majority as admissible also to confirm the awareness of facts not in the public domain by the recipient of a disputed confession. The actual point was the sufficiency of the trial judge's directions to the jury as to the use they could make of the out of court statement. The facts were that on the evening of 11 March 1995, a drug dealer was ambushed and shot three times with a .22 calibre gun. Evidence was given by one Joanne Guziak, with whom the accused had been living for five years but who separated from him about one month after the murder, of conversations with him on the night of 11 March and in the early hours of the following morning in which he told her that he had killed the deceased, and how and when. The witness's mother, Kaye Guziak, was permitted to give evidence of a conversation with her daughter later on 12 March, the day after the killing, in which Joanne told her of the contents of these conversations. This discussion occurred, according to Kaye Guziak, before she saw the news item on the television that night about the killing when the incident first became a matter of public knowledge. Brooking and Phillips JJA relied for the relevance of the mother's evidence on what was said in Burns v R [1975] HCA 21; (1975) 132 CLR 258 by Barwick CJ, Gibbs J and Mason J at 264 and cited the following passage:

"Where an accused by his confession admits facts not then known to his interrogators which are subsequently found to be true, this circumstance affords strong evidence that the confession was in fact made. Where, however, the accused by his confession admits only facts already known to his interrogators the probative value of the truth of what is admitted on the issue whether the confession was in fact made is less cogent ...".

They also cited the judgment of Murphy J at 267 - 268 referring to R v Kerr (No 2) [1951] VicLawRp 31; [1951] VLR 239 at 246; Matusevich v R [1977] HCA 30; (1977) 137 CLR 633 per Gibbs J at 638 - 639, per Murphy J at 648 and Aickin J at 665 - 666; Lattouf & Carr (1980) 2 A Crim R 65 at 74 - 75 per Moffitt P. Brooking and Phillips JJA continued at pars 43 and following:

"And so in the present case, in considering how probable it was that the applicant made the confession, it was material to consider whether the alleged confession admitted facts which were true and were unlikely to have been known to Joanne Guziak unless the applicant himself had related them to her. The mother's evidence of what her daughter said to her on the day after the killing corroborated Joanne's evidence that very shortly after the killing she was aware of certain facts (facts which were true and which the jury could be asked to find she was unlikely to be aware of unless she had them from the applicant). The words of the Full Court in R. v Kerr (No. 2) (supra at 246) could, with appropriate modifications in the light of the facts, be applied to the present case:

'Whether the accused did make the statement alleged was the vital question in the case. He said he strangled the girl and gave a reason why he did it. Any independent proof that that reason was founded on fact and was more likely to have come from him than to have been mentioned or suggested by the police was an important contribution to an enquiry whether he did or did not make the statement.'

In the present case what was important was the Crown's allegation that, very shortly after the killing and so at a time when she was unlikely to have had knowledge of the facts from a source other than the accused, he made a confession to Joanne Guziak in which he related those facts. The mother's evidence that Joanne told her of the confession the day after the killing, if accepted, showed that, at a time when Joanne was unlikely to have learned of the facts from a source other than the applicant, she was aware of them. She manifested her awareness of them by herself relating them as having been told to her by the applicant."

Their Honours added a footnote (25) to this effect:

"On the question of use of the evidence of the mother as making the fact of the confession more probable, reference may be made to Walton v R. [1989] HCA 9; (1989) 166 CLR 283 at, e.g., 300-301, where the use of statements made by a person to show state of mind is discussed. The matter of 'utterances used as circumstantial evidence' is dealt with at great length in Wigmore, Chadbourn Revision, Vol VI, pp 313ff. As to utterances as indicating circumstantially the speaker's own state of mind, see pp 320 et seq. Although it is only to state the obvious, we refer also to Wigmore, Vol II, Chadbourn Revision, p 97."

"On that analysis, the mother's evidence was not 'simply hearsay', nor was it evidence that went solely to rebut the suggestion of recent invention which was made in the course of cross-examination of Ms Guziak. It went also to establish the daughter's knowledge or awareness of facts at a time when they were not yet in the public domain, something relevant to the probability that the confession was made as she claimed in her evidence. When hearsay is admitted for the purpose of rebutting a suggestion of recent invention, and only for that purpose, this should of course be brought to the jury's attention. But here there was a further use for this evidence, otherwise than as hearsay, and it would not have been correct for the judge to direct the jury that the only use to which the evidence could be put was to bolster the credit of Joanne Guziak by rebutting the suggestion of recent invention."

The majority in Georgiev did not consider that the learned trial judge had erred in failing to give more detailed directions as to the use the evidence could or could not be put. It was in respect of that issue that Ormiston JA dissented. At pars 88 and following, he said:

"It is said that this evidence was admissible not merely to restore the credit of the witness Ms Guziak. That is possibly so, although the point was certainly not raised at trial in a direct way. Certainly the time at which the statement to Mrs Guziak was made was very important but in my opinion its importance went to the reliability of Ms Guziak's evidence. If she could have discovered the facts, or sufficient of the facts, from an evening television news broadcast, then her version was the less reliable, but, because the mother gave evidence supporting the statement that the phone call relating the confession was made before those news broadcasts, it could be seen that it was more reliable, for the very purpose of restoring the credit of Ms Guziak, so far as that was necessary.

I accept that the evidence was of greater use to the prosecution than is usual when evidence of this kind is led to restore credit after an attack of 'recent invention'. As was pointed out on a number of occasions during the trial the evidence, if correct, served to show that the confession was repeated by daughter to mother at a time before all details were available from news broadcasts on radio and television. In that sense it also served to boost the reliability of the daughter's account. But it could have taken the Crown case no further. It was not independent evidence of the confession, to be used as an exception to the hearsay rule, because it was an admission against interest. That could only arise if the jury accepted the daughter's version. I concede that the mother's evidence could not have been described, as counsel for the applicant put it in argument, as admitted solely to restore the credit of the daughter. It had, or might have been seen to have, a second relevance and ground of admissibility, but that, to my way of thinking, does not relieve the judge of the need to direct the jury as to what the evidence may not be used for. Some jurors, whether or not familiar with other systems of proof, may have seen the repetition of the confession as making it the more likely that it was true, a conclusion which cannot be countenanced if it depends on hearsay of the primary account.

What, therefore, was required was a direction as to how the evidence could not be used. That is entirely consistent with the authorities referred to earlier. The jury should have been told that they could not rely on it as independent evidence of the matters said to have been admitted by the applicant.

The contents of the mother's evidence were important, but I cannot accept that it could have been used as an independent means of proving the applicant's alleged admission, so that the jury were not entitled to use it independently as proof of the apparent facts relating to the applicant adduced in evidence from the mother. If the jury would not otherwise, notwithstanding this material, accept the daughter's evidence, because of its unreliability on other critical grounds, then they could not act on the mother's account independently, for that was in truth hearsay on hearsay, or at the very least, hearsay of a confession or an admission against interest. The jury could not rely on the mother's evidence in that way and should have been clearly instructed to that effect.

In my opinion the jury may have relied separately on the mother's evidence as proof of a confession by the applicant, so that the failure to give such an instruction led to a miscarriage of justice. The confession was critical to the prosecution case. The possibility that the mother's version may have been misused, for example if the jury had doubts about the daughter's version even allowing for some restoration of her credit, meant that the applicant lost a real chance of acquittal, so leading to a perceptible risk of a miscarriage."

10 With respect, I agree with all of that and see no conflict between it and the statement of principle regarding the second basis of admissibility made by the majority in the paragraphs I have set out. In my view, subject to one qualification, the evidence of the policeman who took Sturzaker's statement was admissible, not as independent evidence of the truth of its contents, but as evidence of the state of knowledge of Sturzaker at the time it was made. This bore on the likelihood of the confession having been made to him, and in that sense it was evidence of the truth of Sturzaker's claim that the respondent had confessed to him in the terms he alleged. But it was indirect and not independent evidence of the truth of that claim and the jury would need to have been told that unless, having regard to all the evidence, they were prepared to accept Sturzaker's evidence as reliable, they could not use the police officer's evidence separately as proof that the confession was made.

11 The qualification I refer to is that before the evidence of the policeman could have been admitted on the above basis, the learned trial judge would need to have been satisfied that there was evidence from which the jury could properly infer that Sturzaker was unlikely to have acquired the information in question from a source other than the respondent. In Georgiev that kind of evidence was clearly present. The person to whom the confession was made was, at the time of its repetition, in an intimate relationship with the accused man and acquired the information within a few hours of the killing. Its repetition to her mother occurred a few hours later and before the details were known publicly. In the present case, the confession was allegedly made to a person who, at the time of its repetition, had fallen out with the respondent and who went to the police in fear of him. There was a powerful motive for a false accusation to be made. Furthermore, the confession was made some three years after the killing and a further ten months elapsed before Sturzaker went to the police. Both the respondent and Sturzaker were engaged in criminal activities together with other persons such as Gillon, and the potential clearly existed for Sturzaker to have acquired details about the disposal of the body subsequently proved to be accurate from others who may have been party to the crime or recipients of information from parties to the crime. A trial judge, in those circumstances, would have to weigh up carefully whether the evidence did indicate a probability that Sturzaker had acquired this esoteric knowledge from the respondent. The last sentence of the quotation from Burns v R (supra) cited by the majority in Georgiev was not completed, but it is relevant for my purposes. It reads:

"Where, however, the accused by his confession admits only facts already known to his interrogators the probative value of the truth of what is admitted on the issue whether the confession was in fact made is less cogent and it should, in general, be excluded from the jury's consideration of that issue in fairness to the accused because its prejudicial effect in the minds of the jury may well outweigh any probative value it has."

I think that is particularly apposite in the circumstances of this case, where the Attorney-General is seeking leave to appeal and to set aside a verdict of acquittal. In my view, there is a very strong case for concluding that the probability of the respondent being the sole source of Sturzaker's knowledge of the disposal details is not particularly high and that its probative value would have been outweighed by its prejudicial effect. However, even if the evidence had been admitted and the jury left to make their own assessment of its cogency, the jury obviously did not regard Sturzaker as a sufficiently reliable witness upon whom to base a conviction and they had ample reason for hesitation before relying upon him. I do not regard this as an appropriate case in which to place an acquitted man in jeopardy of conviction by another jury on the off-chance that it might be swayed by the additional evidence to accept that the confession was in fact made. I would refuse the application for leave to appeal.

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

12 Upon the trial of the respondent for the murder of one Wesley Brooks, the Crown adduced evidence from a witness, T J Sturzaker, that on 27 May 1999, at the Hotel Grand Chancellor in Hobart, the respondent confessed to him that he committed the murder. The witness gave details of the conversation. He said that the respondent told him how he killed the deceased and how he, and another, later returned to the scene of the murder and cut the body up. The witness said that the respondent described how he and his accomplice put the parts of the deceased body in a wheelie bin, weighed that down with cement and screwed the lid shut with "Tek" screws.

13 The Crown wished to adduce an additional piece of evidence from the witness and from a police officer that on 27 January 2000, the witness Sturzaker told the police officer of the account given him by the respondent on 27 May 1999. At that time the deceased was listed as a missing person. In the afternoon of 16 February 2000 police divers were searching the Leven River in the vicinity of the Leven bridge for stolen bikes. They found a wheelie bin. The lid was screwed down with "Tek" screws and inside there was the dismembered body of the deceased and some concrete. Objection was taken to the admission of this evidence and the learned trial judge ruled it inadmissible after a hearing on the voir dire before the jury was sworn in.

14 The respondent was acquitted and pursuant to the Criminal Code, s401(2)(b), the Attorney-General now seeks the leave of this Court to appeal against that acquittal upon the ground that the determination made upon the voir dire was erroneous in law.

15 There is no authority that the learned Director of Public Prosecutions could cite to support his claim that the admission of the impugned evidence was permitted by law. There is ample authority to say that the admission of that kind of evidence is contrary to the common law of evidence. According to Wigmore on Evidence at par1123, "down through the 1700's the notion prevailed that a witness could always be corroborated, without any limitation, by the circumstance of having made at other times statements consistent with the testimony delivered by him in Court." According to Professor Wigmore, the basis for this notion was "loose instinctive logic" that there is some corroborative support in such evidence. However, there is no doubt that since the late 1700's or early 1800's there has prevailed the exclusionary rule that such evidence, sometimes called narrative evidence, is excluded except in certain limited and defined circumstances. The law was stated in R v Parker (1783) 3 Doug 242: 99 ER 643 by Buller J at 244: 635:

"... it was now settled, that what a witness said not on oath would not be admitted to confirm what he said on oath."

16 The rule was stated by Jordan CJ in Smith v Commonwealth Life Assurance Society (1935) 35 LR (NSW) 552 at 556 - 557:

"If the happening which it is material to prove is that somebody had told him something, both he and the person in question may say that the communication took place. But the as a general rule, neither can be heard to say that he afterwards told someone else about it, or made the same communication to somebody else."

17 In The Nominal Defendant v Clemments [1960] HCA 39; (1960) 104 CLR 476, Dixon CJ referred to an exception to the rule that self-serving statements are inadmissible and said, at 479:

"But, inasmuch as the rule [rebuttal of recent invention] forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by a witness, great care is called for in applying it."

Referring to the same exception to that general principle, Winneke P said in R v Kendrick [1997] 2 VR 699, at 710 - 711:

"The general rule is that it is not permissible to seek to restore the credit of a witness, who has made a number of prior inconsistent statements, by proving that he had previously made a statement consistent with his testimony: G J Coles and Co Ltd v McDonald (unreported, 29 March 1996) at 10ff. There has to be something extra, in the nature of an allegation of a recent invention due to a specific cause, to warrant the admission: Fox v General Medical Council [1960] 1 WLR 1017 at 1025-6; Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476 at 479-80 per Windeyer J. Nothing that was said by Holmes J in R v Coll (1889) 24 LR Ir 522 at 541 casts doubt on this principle."

18 The recognised exceptions at common law to this general exclusionary rule are recent complaints in sexual cases, evidence to rebut a suggestion of recent fabrication, and statements made as part of the res gestae. Cross on Evidence suggests, at par[17330], that there may be some other exceptions, but there is no need to examine this further because there is no suggestion in the present case that the evidence of what the witness said to the police officer on 27 January 2000 falls within any of the existing exceptions to the exclusionary rule that bars the admission of a prior consistent statement into evidence-in-chief.

19 The learned Director of Public Prosecutions contended that although the evidence fell within the exclusionary rule that barred its admission, it was admissible upon another basis, namely, that the statement by the witness Sturzaker to the police officer before the detailed and unusual circumstances surrounding the disposal of the body of the deceased were known to the police, showed that the witness had special or "esoteric" knowledge, and the possession of that special knowledge tended to prove that the respondent had made the confession that the witness said he had made on 27 May 1999. There is no doubt that if evidence is admissible for one purpose, it cannot be rejected on the ground that it is inadmissible for another purpose. See Willis v Bernard [1832] EngR 583; (1832) 8 Bing 376 at 383: 131 R R 439 at 441; B v R [1992] HCA 68; (1992) 175 CLR 599. Of course, care must be taken to ensure that the evidence is only used for the admissible purpose.

20 The first question is whether evidence of the witness repeating to the police what the respondent allegedly told him in May 1999 is relevant, for as was pointed out by Gleeson CJ and Hayne J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 at 306, "[r]ules of exclusion of evidence such as the hearsay rule, only arise in the case of evidence is otherwise relevant." Although Stephen's definition of relevance is widely accepted (Cross supra at par1490), for present purposes I would borrow the language of the Evidence Act 2001, s55(1) as apposite, even though the present case went to trial before that Act came into operation:

"The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."

21 For the purposes of this appeal, the relevant facts in issue are:

* did the respondent make the confession to the witness in the terms that the witness alleges; and

22 Obviously, if an accused person confesses to the commission of a crime in terms known only to the killer, then the making of the confession is highly probative of the fact that it is true. The primary evidence of the witness Sturzaker which was given to the jury, was that in May 1999, the respondent confessed to the killing of the deceased and to the later disposition of the body in the manner described. This evidence tended to prove both facts in issue, for the body of the deceased was discovered in the circumstances allegedly described by the respondent, but not until long after the confession had allegedly been made. Although hearsay, such evidence was also admissible as an exception to the hearsay rule which admits into evidence admissions against interest made by accused persons as evidence of the truth of their contents.

23 It is equally clear that the evidence that the witness repeated his account to a police officer, also before the body was discovered is relevant, for it tends to prove the same facts as the primary evidence. However, although relevant, if that evidence is no more than a repetition of the witness' earlier admissible evidence, it is rendered inadmissible by virtue of the exclusionary narrative evidence rule. For the applicant, it was contended that the latter evidence had a separate basis for admissibility.

24 The learned Director of Public Prosecutions referred to some observations (obiter dicta) by members of the High Court in Papakosmas v R (supra). Those observations do not assist the applicant. The case concerned the evidentiary status, pursuant to the Evidence Act 1995 (NSW), of evidence of recent complaint in a rape case in which the issue was consent. The relevant facts were that "virtually immediately" after the alleged rape the complainant told others of the rape and that at the time she did so, she was in a very distressed state. Observations were made that as a matter of logic, the circumstances in which the complainant's out of court statements were made were such that they rendered their making probative of the facts asserted, but at common law, such statements were inadmissible to prove their truth because of the exclusionary hearsay rule. Of course, at common law such statements were admissible on the issue of the credit of the complainant, but not admissible as evidence of the truth. The observations to which reference was made were simply to the effect that an out of court statement can be relevant and can have probative force, but nonetheless, may be excluded by an exclusionary rule.

25 It must be borne steadfastly in mind that the evidence of the witness Sturzaker that is the subject of this appeal is not that the respondent made a detailed confession to him on 27 May 1999, but that on 27 January 2000 he said to a police officer that the respondent made the detailed confession to him in May 1999. As Gaudron and Kirby JJ said in Papakosmas at 580:

"What does emerge from the common law as a reflection of elementary logic is that, without more, evidence that a particular statement was made is probative only of its making and its contents and those inferences which, in the circumstances, may be drawn. On the other hand, it also emerges from the common law, and, again, as a matter of logic, that the circumstances in which a statement is made may sometimes render it probative of the facts asserted."

26 For the applicant, it was contended that the circumstance that at the time Sturzaker spoke to the police officer the body had not been discovered, was probative of the fact in issue that the respondent made the confession attributed to him and that it was true. That is correct, but that could also be said with respect to the witness' primary evidence that was put before the jury. The challenged evidence was no more than confirmatory of the primary evidence and therefore was inadmissible by virtue of the exclusionary rule.

27 In Pollitt v R [1992] HCA 35; (1992) 174 CLR 558, another case referred to by the learned Director of Public Prosecutions, evidence of an out of court statement was admitted. The foundation of the Crown case was that one Allen instigated a criminal arrangement for the appellant and another to murder a man, but the wrong man was killed. Allen died before the trial. Evidence was admitted of what Allen said to a witness in the absence of the accused from which the jury might infer he had been talking to the appellant on the telephone about the failure to kill the right person. The evidence was that it was Ray - the appellant's name - to whom Allen had been talking on the phone. The evidence of the hearsay statement tended to prove that Allen was the instigator of a plot to kill a man and that the wrong man had been killed. It also was probative of the essential issue at the trial, the identity of the accused. The issues were whether the evidence should have been excluded and if not, whether the trial judge's directions to the jury with respect to the use they might make of the evidence were deficient.

28 The majority of the court referred to Walton v R [1989] HCA 9; (1989) 166 CLR 283, which is authority for the proposition that hearsay evidence may be admitted to prove a relevant state of mind. In that case, statements were made to the effect that the hearsay rule should not be applied too rigidly when the dangers that the rule is designed to prevent are negligible. Although the judgments did not speak with one voice, stress was placed upon the need to exclude the possibility of concoction or distortion in conditions of approximate, but not exact, contemporaneity. This approach enabled the majority in Pollitt to craft an exception to the hearsay rule enabling such evidence to be given to identify the party to whom a person, is or has recently been, talking to on the telephone. Foremost in the minds of those who took this approach was the issue of whether there was a significant possibility of fabrication of the statement identifying the person on the telephone.

29 In R v Georgiev [2001] VSCA 18, the principal evidence on the trial against the appellant was given by his former partner. It was to the effect that he had confessed to her that he had murdered the deceased. The deceased was killed at 9:15pm on 11 March 1995. According to his then partner's evidence, later that evening and in the early hours of the following morning, the appellant confessed to her to killing the deceased with details that only the killer could have known. The defence suggested that this was a recent invention and in accordance with a recognised exception to the general exclusionary rule concerning narrative evidence, evidence was admitted that "probably around lunch time" on 12 March the former partner told her mother that the appellant had made the confession to her and recounted the detail that she said he had given her. On the appeal, the complaint was that the jury should have been directed that the evidence of the mother was not evidence that the appellant had in fact made the confession to the daughter, only that the daughter said that he had, thus rendering more credible her evidence to that effect.

30 In a joint judgment, the majority held that the evidence was admissible on another basis as well as to rebut recent invention. When the daughter told her mother about the confession, the details surrounding the murder and recounted in the confession were not then in the public domain and could only have been known to those who committed the murder, or were privy to information given to them by those who did commit the murder. The majority held that this fact made the mother's evidence probative of whether or not the appellant had made the confession, as the witness alleged he had. At par41 the joint judgment of the majority referred "in particular to the timing of the conversation which the mother said that she had with her daughter". They referred to Burns v R [1975] HCA 21; (1975) 132 CLR 258, a case in which the joint judgment referred to the proposition that where an accused confesses facts then known only to the killer, it affords strong evidence that the confession was made. The joint judgment in Georgiev continued at par43:

"And so in the present case, in considering how probable it was that the applicant made the confession, it was material to consider whether the alleged confession admitted facts which were true and were unlikely to have been known to Joanne Guziak unless the applicant himself had related them to her. The mother's evidence of what her daughter said to her on the day after the killing corroborated Joanne's evidence that very shortly after the killing she was aware of certain facts (facts which were true and which the jury could be asked to find she was unlikely to be aware of unless she had them from the applicant)."

31 Ormiston JA took a different and, with great respect to the majority, I think correct view when he said, at par88:

"It is said that this evidence was admissible not merely to restore the credit of the witness Ms Guziak [the daughter]. That is possibly so, although the point was certainly not raised at trial in a direct way. Certainly the time at which the statement to Mrs Guziak was made was very important but in my opinion its importance went to the reliability of Ms Guziak's evidence. If she could have discovered the facts, or sufficient of the facts, from an evening television news broadcast, then her version was the less reliable, but, because the mother gave evidence supporting the statement that the phone call relating the confession was made before those news broadcasts, it could be seen that it was more reliable, for the very purpose of restoring the credit of Ms Guziak, so far as that was necessary."

32 I accept that the evidence in Georgiev was of greater use to the prosecution than is usual when evidence of this kind is led to restore credit after an attack of "recent invention". As was pointed out on a number of occasions during the trial, the evidence, if correct, served to show that the confession was repeated by the daughter to her mother before all the details were available from news broadcasts on radio and television. In that sense it served to boost the reliability of the daughter's account that the appellant had confessed to her, as she claimed he had. But recounting the evidence to her mother took the Crown case no further than that. It was not evidence independent of the daughter that the appellant had made the confession and thus admissible as an exception to the hearsay rule as an admission against interest.

33 The fact that the daughter had the special or "esoteric" knowledge is, of course, of great significance, but as Ormiston JA pointed out, the evidence of the daughter's conversation with her mother was not independent evidence of her having esoteric knowledge. Her knowledge was gained as a result of her conversation with the appellant and the mother's evidence did no more than boost the credibility of the daughter's primary evidence of that conversation. No authority was cited by the majority for the view they adopted and, again with respect, it seems to me to be contrary to principle. Whether the confession was repeated to the mother before or after the details of the crime had been in the public domain goes to weight, but it seems to me to make no difference to the proposition that this was relevant evidence but rendered inadmissible to prove the truth of the matters asserted by virtue of the hearsay and narrative rule, and there was no other basis for its admission. The position is the same in the present case.

* The Crown led evidence from the witness Sturzaker that well before the body had been found, the accused made a confession to him, not only of killing the deceased, but also of disposing of the body in the manner described.

* The Crown sought to lead evidence from the witness Sturzaker that he told a police officer that well before the body had been found, the accused made a confession to him, not only of killing the deceased, but also of disposing the body in the manner described.

Both paragraphs constitute relevant evidence. The first is admissible as an exception to the hearsay rule. The second paragraph is inadmissible as infringing the hearsay narrative rule. Does the additional fact that the second conversation took place shortly before the body was found give it any separate basis for admissibility? I cannot see how it does. It certainly boosts the credit of the witness, but I do not see it as providing any additional status to warrant its admission in the face of the exclusionary rule.

35 The cross-examination of Sturzaker showed that there was a history of criminal transactions between the respondent and Sturzaker involving drugs and guns, and that in the past, Sturzaker had given evidence against the respondent on a trial which resulted in the respondent being sentenced to a term of imprisonment. In addition, on the trial, evidence was given by two witnesses that as far back as the end of 1999, there were rumours abroad that the deceased had been murdered, put in a wheelie bin, that the lid had been screwed down by "Tek" screws and that the bin would not be found. The evidence of Sturzaker was that he went to the police in January 2000, eight months after the alleged confession to him by the respondent, because he was in fear of his life at the hands of the respondent. In all these circumstances it cannot be said that Sturzaker's evidence that he said to a police officer before the body was found, that the respondent had made a confession to him, had some special character that made it admissible, notwithstanding the exclusionary rule.

36 I do not wish to be understood as stating that, recognised exceptions aside, a self-serving or hearsay statement can never be admitted on the basis that the circumstances of its making are such that it is admissible to prove that the events described by the primary evidence occurred. The general rule is that evidence that is inadmissible for one purpose may nevertheless, be admissible for another purpose. However, the circumstances of the making of the statement by the witness Sturzaker to the police officer goes only to the credit of the witness and is not admissible in accordance with the exclusionary rule.

37 In view of the foregoing it is unnecessary to deal with the submissions that were made to the Court on behalf of the respondent upon the discretionary issue of whether there should be a grant of leave to appeal. I would grant leave, but dismiss the appeal.

38 I agree with the reasons for judgment prepared by Cox CJ and would refuse the application for leave to appeal.