High Court of Australia|1995-11-09|Before: Brennan CJ

Bannon v R [1995] HCA 27; (1995) 185 CLR 1 (9 November 1995)

[1995] HCA 27; (1995) 185 CLR 1

BRENNAN CJ(1), DEANE(2), DAWSON(3), TOOHEY(3), McHUGH(4) AND GUMMOW(3) JJ

2. Calder's statements, which admitted her culpability in the killing of Armstrong and Woodfall, might have been understood by the jury as an acceptance of sole responsibility for the killings. If so understood, the statements might have tended to show that the appellant was neither acting in concert with Calder nor aiding and abetting her in the killing of Armstrong and Woodfall. The statements were made either not in the presence of, or not with assent given by, the appellant. The trial judge directed the jury:

" You may not use Calder's admissions to the police which

implicates Calder against her. What is said out of court and not in the presence of the co-accused is not evidence in the trial of the other accused."

Later his Honour reminded the jury (without comment) that the appellant's counsel had sought to rely on Calder's statements "to make it seem less probable that Bannon could have carried out these murders". The jury were recalled to receive a further direction including a direction that what Calder had said to a witness in the absence of the appellant "could not in any shape or form be used in Bannon's trial against him".

3. The ground of appeal to this Court is that the Court of Criminal Appeal erred in not upholding a submission that the trial judge should have admitted Calder's statements in exculpation of the appellant, though the statements were hearsay and not admissible to inculpate the appellant. Having regard to the reliance which counsel for the appellant placed on Calder's statement in his address to the jury and the terms of the trial judge's charge, it is doubtful whether the jury would have failed to consider whether Calder's statements cast reasonable doubt on the prosecution case against the appellant. The absence of any appropriate application by counsel for the appellant for redirection on this aspect of the case militates against a conclusion that, even if the submission were correct in law, there was any miscarriage of justice.

4. However, I shall not rest my judgment on this point. The case was argued in this Court on the footing that Calder's statements, if exculpatory of the appellant, ought to have been admitted in aid of the appellant's defence but were not so admitted. The submission that Calder's statements were admissible in favour of the appellant was put on three bases: (i) the rule against admitting hearsay should be applied flexibly, (ii) there is an exception to the hearsay rule where the out-of-court statement is against the penal interest of the person making it and that person is unavailable to testify and (iii) there is an alternative exception to the hearsay rule where the out-of-court statement is judged to be "reliable" and its admission is "necessary".

5. There are passages in some of the judgments in Walton v The Queen(1), R v Benz(2) and in Pollitt v The Queen(3) that propose a relaxation of the rule against the admissibility of hearsay evidence. The suggested relaxation has been said to be appropriate when the trial judge is of the opinion that the evidence has "a high degree of reliability"(4) or is "sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight which should be placed upon it, notwithstanding that in strict terms it would be regarded as inadmissible hearsay"(5). In Pollitt(6), I stated my reasons for rejecting the admissibility of hearsay evidence when its admission is based simply on the judge's opinion of its reliability. I adhere to that view, which accords with the authorities there cited and, in particular, with the adoption of the corresponding view of Barwick CJ in Vocisano v Vocisano(7) by the joint judgment in Walton(8).

6. To admit hearsay evidence whenever the judge forms the opinion that the evidence is sufficiently reliable would be to transform the nature of a criminal trial. If the judge's opinion be based on no specific criteria but only on an appreciation of the circumstances generally, the judge would have to exercise a lively discretion to exclude evidence that the judge thought to be reliable in order to prevent undue prejudice to the accused who could not cross-examine the maker of the out-of-court statement. The judge would have to determine the scope of the evidence in the trial not by an application of legal criteria but by reference merely to reliability on the one hand and undue prejudice on the other. Admissibility would reflect no more than the judge's opinion of the fairness of exposing the accused to the risk of conviction on the hearsay evidence. That is not an appropriate power to vest in a trial judge who has not heard the declarant making the statement and ordinarily would not have seen the declarant(9). It is one thing for a trial judge to rule on the fairness of admitting an accused's confession when the accused was, ex hypothesi, the actor in the relevant events and is able to contest, by cross-examination and by testimony, the case advanced against him that is based on the confession; it is another thing to rule on the fairness of admitting the statement of another declarant when the accused was not involved in the making of the statement and is unable effectively to contest the case based on the statement. I would therefore reject the first basis on which the appellant seeks to challenge the judgment of the Court of Criminal Appeal. The next question is whether there is, or should now be recognised, a definite exception to the hearsay rule which would admit some hearsay confessional statements that have hitherto been excluded.

7. In the Sussex Peerage Case(10), which held declarations by a deceased person made against that person's proprietary or pecuniary interest were admissible as exceptions to the hearsay rule, the admissibility of declarations by deceased persons against penal interest was expressly rejected. That view, though followed by the Supreme Court of South Australia in In re Van Beelen(11), by the House of Lords in R v Blastland(12), by the English Court of Criminal Appeal in Turner(13) and by the Supreme Court of the United States in Donnelly v United States(14), was powerfully criticised by Holmes J in the last mentioned case(15). In Queensland(16) and in the United States(17) the Sussex Peerage rule has been doubted. It was also trenchantly attacked by Wigmore(18).

8. Mr Justice Holmes' criticism of the rule in Sussex Peerage struck a responsive chord in the Supreme Court of Canada in Demeter v The Queen(19), R v O'Brien(20) and Lucier v The Queen(21). The principles which the Supreme Court of Canada approved for the admission of an out-of-court confession by an unavailable(22) declarant include the following(23):

"1. The declaration would have to be made to such a person and in

such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result ...

2. The vulnerability to penal consequences would have to be not remote.

5. The declarant would have to be unavailable by reasons of death, insanity, (or) grave illness which prevents the giving of testimony even from a bed, or absence in a jurisdiction to which none of the processes of the Court extends."(24)

Unless principles of this kind are adopted to limit the admissibility of evidence of out-of-court declarations against penal interest, false confessions untested by cross-examination would bedevil criminal trials. Gaol-house confessions allegedly made by prisoners who would decline to admit guilt testimonially would be a commonplace.

9. In Canada, out-of-court declarations against penal interest are allowed as exceptions to the hearsay rule only in the case of declarations exculpatory of the accused, since the admission of hearsay evidence against an accused would rob him of "the invaluable weapon of cross-examination which has always been one of the mainstays of fairness in our Courts"(25). Even if these conditions were adopted as criteria of admissibility of out-of-court confessions by an unavailable declarant, other requirements would have to be considered to safeguard against the risk of fabrication to which the Supreme Court of South Australia referred in In re Van Beelen(26).

10. The Supreme Court of Canada saw the whole theory of admissibility of out-of-court declarations against interest to be that the declarant knew the declaration to be against interest at the time when the declaration was made(27). For that reason, a strict application of the Demeter principles 1 and 2 would restrict the Canadian exception to little more than confessions made to a police officer(28). If those principles were to be applied in this case, none of Calder's statements would be held admissible. None of them was made under the apprehension that she was vulnerable to a penalty as a consequence of what she was saying. On the contrary, she was speaking in a state of high emotion to a confidant to whom she had resorted for assistance in avoiding detection for her part in the murders. Further, if the proposed exception to the hearsay rule were to be limited to out-of-court statements against penal interest that are exculpatory of an accused person, this case would not fall within that limited category. Calder did not deny the appellant's complicity in the murders and her admission of her part in the killings is an admission of one element in the crimes with which the appellant was charged. It is therefore unnecessary now to decide whether and subject to what conditions the absolute exclusory rule in the Sussex Peerage Case should be discarded. If out-of-court declarations against penal interest are to be held admissible subject to certain conditions for or against an accused, this is not a case in which that ruling would benefit the appellant. The second basis advanced for the admission of Calder's statements fails.

(iii) Reliability, necessity and exculpatory effect

11. The third basis on which Calder's statements are submitted to be admissible in favour of the appellant is that the satisfying of two conditions - "necessity" and "reliability" - is all that is needed when the evidence is exculpatory of an accused. This submission is founded on recent judgments of the Supreme Court of Canada. In R v Khan(29) the question was whether an out-of-court statement by a child to her mother that she had been sexually assaulted by the accused was admissible against him. McLachlin J, speaking for the Court, said(30):

" I conclude that hearsay evidence of a child's statement on

crimes committed against the child should be received, provided that the guarantees of necessity and reliability are met, subject to such safeguards as the judge may consider necessary and subject always to considerations affecting the weight that should be accorded to such evidence."

"Necessity" was interpreted as "reasonably necessary"(31) and the matters relevant to reliability were said to "vary with the child and with the circumstances, and are best left to the trial judge"(32). Khan was followed in R v Smith(33) and in R v Finta(34).

12. In Smith, Lamer CJC, speaking for the Supreme Court, said(35):

" This court's decision in Khan ... signalled an end to the old

categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence, and its necessity. ...

The criterion of 'reliability' - or, in Wigmore's terminology, the

circumstantial guarantee of trustworthiness - is a function of the circumstances under which the statement in question was made. ...

The companion criterion of 'necessity' refers to the necessity of

(T)he criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available."

13. In Finta the accused, charged with a war crime allegedly committed in Hungary in 1944, tendered depositions given to Hungarian authorities by a deceased person whose statement was submitted to be exculpatory of the accused. In ruling on the admissibility of the depositions in accordance with the Khan principles, both the majority in the Ontario Court of Appeal(36) and Cory J(37) with whom a majority of the Supreme Court agreed referred to the rule that out-of-court declarations against penal interest were admitted in favour of, but not against, an accused(38). This reference suggests that that rule has some application to evidence the admissibility of which rests on Khan, although Khan was a case in which the hearsay evidence of a child was admitted in proof of the accused's guilt. It may be that the principles approved in Demeter, O'Brien and Lucier in determining the admissibility of declarations against penal interest have now been overtaken by the broad tests of admissibility to be found in Khan but, if so, Khan itself is an exception to the Lucier rule that hearsay is admissible for, but not against, an accused. However that may be, the broad tests of necessity and reliability advanced in Khan and Smith are hard to reconcile with the view expressed by Barwick CJ in Vocisano, by Wilson, Dawson and Toohey JJ in Walton and by me in Pollitt(39), namely, that a judge's opinion of reliability does not make hearsay admissible. The Khan test of reliability is reduced to a matter of judicial opinion.

14. "Necessity" adds very little if it means only "that hearsay is the only available means of putting that evidence before the court"(40). Under that test, although direct testimony could not be obtained from an incompetent witness, a witness entitled to claim privilege or a co-accused, an out-of-court declaration by such a witness would be received. I would not adopt the Khan approach. It runs counter to the law of this country which treats hearsay as inadmissible unless it falls within a defined exception.

15. If the exception of declarations against penal interest were to be accepted as part of our law, there may be a question whether the principles approved in Demeter are appropriate or whether some other (possibly less restrictive) principles should be adopted, bringing our law closer to the Canadian law. I do not suggest that that is the desirable development. Rather it seems to me that any revision of the approach hitherto taken in this country would require a general review of the hearsay rule, its history, purpose and operation. But that must be a question for another day.

16. In the present case, counsel for the appellant did not submit that any exception to the hearsay rule should admit evidence inculpatory of an accused person. But the statements by Calder in so far as they inculpated herself were likely to be understood by the jury as inculpatory of the appellant as an aider and abettor. It follows that, on any view of the scope of an exception to the hearsay rule as contended for, the appellant cannot succeed. If Calder's statements were understood to be exculpatory of the appellant in the sense that the appellant was not a party to Calder's offence, Calder's statements can hardly be taken to be reliable as to that fact. That fact is not asserted and the circumstances in which the statements were made give no assurance that Calder was adverting to the appellant's involvement in the murders. If Calder's statements would not satisfy even the Khan tests of admissibility, it would be inappropriate now to declare any new exception to the hearsay rule. The third basis on which the admissibility of Calder's statements rested also fails.

DEANE J The detailed facts of this case are set out in the joint judgment of Dawson, Toohey and Gummow JJ. I agree with their Honours' conclusion that the appeal must be dismissed and am in general agreement with what they say about the appellant's submissions supporting either a broad flexible relaxation of the hearsay rule to allow evidence of inherently reliable hearsay statements "at the instance" of an accused or a widening of the exception from the hearsay rules of some statements made against interest. I add some comments of my own about the particular problem which arises on a joint trial when the prosecution tenders evidence against one accused but seeks to preclude the other accused from relying upon it.

2. The joint criminal trial of two persons charged either on the basis that both were jointly involved in criminal conduct or on the basis that one or other of them is alone guilty of the charged criminal offence has long been rightly seen as representing one of the most difficult facets of the administration of criminal justice. At the heart of the difficulties which are likely to be inherent in such a joint trial, there lies the likelihood that some evidence which is led against one or other of the accused will be prejudicial to the other accused but inadmissible in his or her trial(41). Ordinarily, the trial judge must endeavour to meet that circumstance with clear directions to the effect that the particular evidence is not evidence in the trial of the other accused and that the jury would be acting unlawfully, and doing a grave injustice to the other accused, if they took it into account against him or her. In such circumstances, the other accused is subjected to the risk of illegitimate prejudice and is likely to be placed in a forensic dilemma involving the need to choose between reliance on the efficacy of judicial directions and increasing the risk of emphasising the prejudicial material by seeking to counter it. Nonetheless, an intelligent juror can be expected to perceive the fairness of the approach that material, such as an ex-curial statement made in the absence of the other accused and not susceptible of being tested by cross-examination on behalf of that accused, should not be treated as evidence against him or her. The same cannot, however, be said of circumstances where, on a joint trial, the Crown leads evidence against one accused but, on the ground that it is not led or admissible against the other accused, seeks to preclude the other accused from relying upon it to support his or her denial of guilt. Indeed, particularly in the context of the criminal standard of proof, one can envisage circumstances in which an ordinary juror would be conscious of strong considerations of fairness and common sense militating against a strict observance of a trial judge's direction to the effect that the other accused was not entitled to rely on such evidence for the reason that it was not evidence in his or her trial. The point is best made by example.

3. Let it be presumed that each of A and B is charged, on a joint trial, with the murder of X in circumstances where it is apparent that one or both of them is or are guilty. The defence of each is that the other is solely responsible. The Crown leads forensic and other evidence, some of which tends to establish A's guilt and some of which tends to establish B's guilt. The Crown also leads, but only as against B, evidence of a video-taped confessional statement by B in which he unambiguously admits that, alone and without assistance, he killed X. The Crown alleges, but B disputes, that the confessional statement was voluntarily made. In B's trial, the critical question for the jury is likely to be whether, in the context of the forensic and other evidence supporting A's guilt, B's confessional statement should be accepted as voluntary and reliable. There is obvious force in the argument that it would be unsatisfactory from the point of view of the administration of justice if, in those circumstances, the trial judge was, at the request of the Crown, obliged to direct the jury that, regardless of whether they considered that B's confession of guilt was voluntary and reliable, they were bound to disregard it in the trial of A. The result would be that A's trial was conducted on the arguably illogical and unfair basis that the question whether there was a reasonable doubt about A's guilt had to be resolved by the jury without regard to material which was, if reliable, inconsistent with such guilt and which the Crown itself had placed before the jury (in B's trial) on the basis that, even assessed by reference to the criminal standard of proof, it was, at least in part, reliable.

4. The same comment could be made with even greater force if, altering the circumstances of the example, both A and B were charged but on the basis that it was apparent that one only of them was guilty. It is at least arguable that it would border on the unreal if, in those circumstances, the trial judge was required to direct the jury that they were bound to disregard, in the trial of A, the confession of B upon which the prosecution itself relied in the trial of B. Indeed, the outcome of such a situation could, if the jury loyally obeyed the trial judge's direction to that effect, theoretically be that each of A and B was convicted of the crime notwithstanding that the Crown case was that one only of them had committed it.

5. It is no answer to the above examples to say that, in the particular circumstances postulated, there should not be a joint trial or that, in the case of the second example, an appellate court would intervene in the event that A and B were both convicted of a crime of which the Crown conceded only one could be guilty. The point of the examples is simply to demonstrate that, in circumstances where the Crown has seen fit to proceed against two accused persons jointly and to lead particular evidence on the joint trial against one only of them, a situation can arguably arise in which ordinary considerations of fairness would be affronted and the administration of criminal justice mocked if the other accused were precluded from relying upon that evidence if it supported his or her innocence or raised a doubt about his or her guilt.

6. Nor is it any answer to the above examples to say that they should be seen as merely supporting a widening of the rule permitting evidence of ex-curial statements made against interest. One can envisage a comparable situation arising with respect to almost any evidence, including evidence of other than a statement against interest, which is technically admissible against only one accused in a joint trial. An example would be if, in the circumstances of the second of the above examples, B's ex-curial statement had been made before the killing and was strongly supportive of B's guilt (eg an admission that he had possession of a gun which was subsequently used in the killing) but was not admissible in A's trial pursuant to any currently established exception to the hearsay rule. Moreover, the considerations relevant to the question whether ex-curial admissions by an unavailable third party against penal interest should generally be admissible in a criminal trial do not correspond with those relevant to the particular problem which arises when one accused on a joint trial wishes to rely on evidence which the prosecution has led only against the other accused.

7. The central prescript of our criminal law is that no person should be convicted of a crime unless his or her guilt is established beyond reasonable doubt after a fair trial according to law. The specific content of the requirement of a fair trial may vary with changing circumstances, including contemporary standards and perceptions(42). When it appears that judge-made rules of evidence or procedure conflict, or are liable to conflict, with the basic requirements of fairness, it is a function of a final appellate court, such as this Court, to address the question whether those rules should be altered or adjusted to avoid such conflict.

8. Obviously, the circumstances of a particular case may be such that a co-accused should only be permitted to rely on particular evidence which is not led against him or her if he or she accepts that other material providing the context of that particular evidence, or evidence led in rebuttal of it, be also treated as evidence in his or her trial. Subject to that safeguard, however, it appears to me to be strongly arguable that the basic requirement of fairness dictates that, in circumstances where the Crown has seen fit to bring a person ("the first accused") to a joint trial with another accused and to place before the jury material which is tendered only against that other accused but which is supportive of the innocence of the first accused, the trial judge have a discretion to direct that that material, even though otherwise inadmissible in the trial of the first accused, be evidence in that trial at the instance of the first accused if, in all the circumstances of the case, the trial judge considers that fairness to the first accused and the interests of the administration of justice support the conclusion that such a direction be given. However, the argument in this Court was not really directed to the question whether such a discretion should be recognised as existing in those particular circumstances. Since, for the reasons given below, the appeal must fail in any event, it is preferable that I refrain from expressing a concluded view in relation to it.

9. In the present case, no application was made at the trial for a direction that the evidence of Ms Calder's ex-curial statements be evidence in the trial of the appellant. Nonetheless, if there were grounds for apprehension that a miscarriage of justice may have occurred by reason of a refusal by the trial judge to allow the appellant to rely on Ms Calder's ex-curial statements, I would have been of the view that the absence of any such application should not be permitted to stand in the appellant's way in circumstances where it was apparent at the trial that the appellant wished to rely on them. There are, however, no grounds for apprehension that any such miscarriage of justice occurred. For one thing, as Dawson, Toohey and Gummow JJ point out, Ms Calder's ex-curial statements did not, in a context where the prosecution case was that the appellant and she had acted in concert, provide unambiguous support for the appellant's case. More importantly, consideration of the overall course of proceedings at the trial and of the learned trial judge's directions to the jury, when read as a whole, discloses that the appellant was effectively left in the wholly favourable position of being permitted to rely on those statements while being shielded from being adversely affected by them.

10. It is true that, at an early stage of his directions to the jury, the learned trial judge informed the jury that "(w)hat is said out of court and not in the presence of the co-accused is not evidence in the trial of the other accused". That was, however, said in explanation of a specific and favourable direction which immediately preceded it:

"You may not use Calder's admissions to the police which

implicate Bannon against him, nor may you use Bannon's unsworn evidence which implicates Calder against her." (emphasis added)

Counsel for the appellant had addressed the jury on the basis that his client was entitled to rely on the co-accused's ex-curial statements. The learned trial judge, at a subsequent stage of his directions, drew the attention of the jury to that fact without adverse comment or any suggestion of criticism. Otherwise, the only relevant direction was a favourable one, namely, that what Ms Calder said in her ex-curial statements "could not in any shape or form be used in Bannon's trial against him" (emphasis added). In these circumstances, it is apparent that there is no real possibility that a miscarriage of justice resulted from the absence of any express direction by the trial judge on the question whether the appellant was entitled to rely on the ex-curial statements of his co-accused. In that regard, it is relevant to note that, not surprisingly, counsel for the appellant at the trial neither raised any relevant objection to the trial judge's directions nor sought any relevant further direction at the conclusion of the summing up.

DAWSON, TOOHEY AND GUMMOW JJ The appellant was convicted, following a trial by jury, on two counts of murder. His appeal against conviction was dismissed by the Court of Criminal Appeal of the Supreme Court of Victoria (Phillips CJ, Crockett and Vincent JJ).

2. The appellant's appeal to this Court is on the ground that the trial judge erred in not permitting the jury to take into account statements said to have been made by the appellant's co-accused which were exculpatory of the appellant. Determination of the appeal requires a fairly close examination of the relevant facts and also reference to the way in which the trial judge dealt with the evidence in question.

3. The appellant and his co-accused, Kerry Calder, were charged with the murders of Timothy Armstrong and his de facto wife, Kylie Woodfall. On the evening of 19 February 1991 the appellant had been at Calder's home, visiting Calder's partner, Susan Batrouney. Apparently the appellant accepted a lift home in Batrouney's Holden Rodeo with Calder, whom he had known for a month by reason of her relationship with Batrouney. However, Calder decided to take a detour to Armstrong's house. Armstrong was a drug dealer and Calder believed that he had "ripped her off" and had informed on her to the police. The appellant did not know Armstrong or Woodfall.

4. At Armstrong's house, fatal knife wounds were inflicted upon Armstrong and Woodfall. Calder stabbed herself in the foot and the appellant's hand was injured(43). It will be necessary to spell out these events in more detail but it is convenient to look first at the evidence the subject of the appeal. Calder and the appellant drove to a farmhouse occupied by Brett Goodman and his girlfriend Cynthia Duiker. Goodman had previously supplied Calder with marijuana but neither Goodman nor Duiker was known to the appellant. The appellant went into the house and got the others to assist Calder to come inside.

5. Duiker cleaned up the wound to Calder's foot. When she asked Calder what had happened, Calder said that she "and the other bloke was involved in a knife fight in the Dandenong area" and that her injury was "what you get when you kick knives out of people's hands". After the wound was cleaned, Calder rang Batrouney and instructed her to ring the police and report that her car had been stolen. Calder then told the appellant to go outside and clean the car. Earlier Duiker had given the appellant some bandaids to put over the cuts to his hand. Whilst the appellant was outside, Duiker attempted to persuade Calder to go to a doctor. Duiker's evidence was that Calder replied:

"I just can't go to a doctor, I could have killed these couple of

people tonight in this knife fight ... I just can't go to a doctor, you don't understand, if I go there they'll know I've done it."

6. Calder was unable to persuade Batrouney to come and pick her up so Duiker offered to drive her home. Duiker and another person helped Calder out to Duiker's car. As Duiker and Calder were leaving, they passed the Rodeo and Calder asked the appellant to get her things out of it. Calder also told the appellant to make sure the car was wiped, to dump it and to meet her back at her house. (In fact, due in part to the amount of alcohol he had consumed, the appellant's driving attracted the attention of the police and he was arrested before he could dispose of the car.) During the journey, Duiker again attempted to persuade Calder to go to a doctor. Calder replied:

"You just don't understand, you know too much already, these

Duiker's evidence was that Calder also said that she could have killed two people but "it didn't matter, it wasn't a worry, prison meant nothing".

7. Goodman gave evidence that while Calder's foot was being cleaned at the farmhouse and in the presence of the appellant, Calder said she sustained the injury while she was "out bluing". He also said that she said at some stage, and in the presence of the appellant:

"Oh, fuck. I don't know, I think I've killed these cunts."

8. The appellant and Calder were presented on a joint indictment. At the trial the appellant made an unsworn statement. Calder did not give evidence and made no such statement.

9. There was no evidence as to which of the appellant and Calder had stabbed Armstrong and Woodfall other than admissible evidence of what was said by each accused in relation to the killings. The Crown therefore proceeded on the basis that one or the other was responsible for each death and that the other either acted in concert or aided and abetted the principal actor. It was not disputed that Armstrong and Woodfall were murdered and that at the time of their murders only the appellant and Calder were at the house, apart from Woodfall's child.

10. At the outset of his charge to the jury the trial judge said:

" So, you have, on the one hand, the Crown's allegation that

the two accused are guilty of the two murders because they agreed to kill the victims, or because one of them aided and encouraged and assisted the other to cause the deaths.

Should you find what is known as 'concert' existing between

Bannon and Calder, you do not have to find which accused did the acts that killed Armstrong or which accused did the acts that killed Woodfall. You would be entitled to find both accused guilty on the basis that they acted together, in concert, and that together they murdered the two victims, although you are unsure of the precise role each one played in the murders.

Should you not be satisfied as to concert, which is the first way

the Crown has put its case, you will proceed to consider whether one accused aided and abetted the other to kill, firstly, Armstrong and, secondly, Woodfall. You could find, for example, that Bannon killed Woodfall aided by Calder, and that Calder killed Armstrong aided by Bannon, or that one of them killed both victims and the other accused assisted."

His Honour summarised the answer of each accused in the following way:

" Bannon says he is not guilty of the murder of each deceased

person and, in essence, his defence is that Calder, acting alone, murdered the two victims and that he was an immobilised eye witness.

Calder says, in answer to the charges, that she is not guilty of

the murder of each deceased person and, in essence, her defence is that Bannon, acting alone, murdered the two victims and that she was not a party to the crimes, although she was present when the two murders were committed.

The defence of each accused involves each accused asserting that

11. When interviewed by the police, the appellant admitted going with Calder to Armstrong's house and of having been invited inside by a young girl. Clearly this could only have been Woodfall. He said that he sat down at a table, that he was in a different room when Armstrong was killed and that he was outside the house when Woodfall died. When she was interviewed, Calder said that it was the appellant who killed Armstrong and Woodfall by stabbing them a number of times and then cutting their throats. Her apparent explanation for these actions was that the appellant had raped Woodfall and had become "concerned about people knowing his identity".

12. In his unsworn statement at trial the appellant gave a quite different account. He said that Calder entered the house first and told him to wait. About 15 or 20 minutes later Calder came out of the house and told him to come in. When he got inside there were two people tied up on the floor. Calder had a couple of knives and a pistol. She pushed him into a chair, tied his hands behind his back and stuck a sock in his mouth. Calder was saying that her name was George - "Kerry's not here any more". She pushed and kicked Armstrong and was saying that she wanted "that list". She then untied his feet and took him into another room. She was away for ten or fifteen minutes during which time the appellant heard banging and yelling. Calder then returned with Armstrong who had "a large amount of blood on him". Calder was screaming for "that list" and then started stabbing Armstrong. After that Calder "went over to the female person and said to her 'Where's the list, I want that list'". Calder then started stabbing Woodfall and cut her throat. Calder was sitting on the floor and stabbed herself in the foot, saying: "See, nothing can hurt me." Calder went into another room and returned with something wrapped around her foot. She untied the appellant's hands, then slashed him with the knife after he refused to pick up some objects. "I put my hand up and covered my face and she cut my hand." Later she said: "The only reason you're alive, I need your help. If you say anything I'll kill you."

13. In the course of his charge to the jury the trial judge emphasised the need for them to consider separately "the case against each accused and the defence referable to each accused". He made it clear that the jury might find one of the accused guilty of one or both charges without convicting the other accused of either offence. Indeed, his Honour said:

" If you consider that Bannon's account to you unsworn is

possibly a true version of what happened ... then Bannon should be found not guilty, not guilty of both murders."

The jury must have rejected the appellant's account. However the only ground of appeal is that relating to the admissibility of Calder's statements to Duiker and Goodman. The reliability of his conviction is not otherwise challenged. In that regard, it should be noted that the above account, being largely confined to those aspects of the evidence which are relevant to that particular ground of appeal, does not purport to summarise all of the evidence against the appellant.

14. After referring to the evidence, his Honour spoke again of the nature of the Crown case against both accused. He said: "The first way the Crown puts its case against both accused in this trial is that they reached an understanding or agreement that together they would kill Armstrong and Woodfall." His Honour explained the law involved in such an understanding or agreement and no objection has been taken to that explanation. His Honour then moved to the second way in which the Crown put its case, that is, of aiding and abetting. No objection has been taken to his Honour's explanation of the law in that regard. But it was after his Honour had given these explanations that he again reminded the jury that they must keep the two cases separate, saying:

" You may not use Calder's admissions to the police which

implicate Bannon against him, nor may you use Bannon's unsworn evidence which implicates Calder against her. What is said out of court and not in the presence of the co-accused is not evidence in the trial of the other accused."

15. In precise terms, his Honour was speaking of evidence which might implicate the co-accused and by reference to what one of the accused said, whether in an interview or in an unsworn statement. What is at issue here is the use the jury might make, in considering the appellant's guilt, of statements made by Calder to other witnesses, implicating herself and tending to exculpate the appellant.

16. This matter arose first on 21 January 1993, on the third day of the trial. At that stage mainly evidence of a scientific nature had been led by the Crown. In a discussion between the trial judge and counsel for both accused, counsel for the appellant said:

"I would and had intended to submit to Your Honour that Your

Honour should rule that there are significant admissions made by Calder which are available to Bannon to use in his defence".

Counsel supported that submission by reference to Walton v The Queen(44). The judgments in that case do not directly touch the point at issue in this appeal. The most assistance the appellant can gain from them lies in expressions of opinion that the hearsay rule should not be applied inflexibly. In the event no ruling was made by his Honour on the use that could be made of this evidence. The trial judge referred to the evidence again when dealing with the final addresses of both accused. Speaking of the argument by counsel for the appellant, his Honour said:

" He also sought to rely upon admissions made by (Calder) in

the videoed interview and to Duiker and to Goodman, all in an endeavour to advantage Bannon and to make it seem less probable that Bannon could have carried out these murders."

The trial judge made no comment on that aspect of counsel's argument so the jury might well have thought that they could rely upon any admissions by Calder tending to exculpate the appellant. Indeed, as counsel for the respondent submitted in this Court, it is clear that counsel for the appellant was relying on those admissions to support the appellant's case that Calder had acted alone and that the jury must have known that he was so doing.

17. After the jury retired counsel raised with the trial judge several matters arising out of his directions to the jury. Counsel for the appellant asked for no further direction in relation to any matter relevant to this appeal. However, counsel for Calder did refer to what had been said by Calder to Duiker in the car. Counsel said:

"Now, Mr Langslow (counsel for the appellant) is asking for an

admission as against Calder and he can't rely on that."

" This I will point out to the jury quite clearly, that what

was said in the motor car between Duiker and Calder is not evidence in Bannon's case."

His Honour did so instruct the jury but in the sense that he said:

" Of course, what was said in the car as Duiker drove Calder

home to Seaford was not in the presence or the hearing of Bannon, so what she said there could not in any shape or form be used in Bannon's trial against him."

Once again, the emphasis was on warning the jury that what was said by Calder to others could not be used to inculpate the appellant in the charge against him. No clear distinction seems to have been made at the trial between the use of statements made by Calder to inculpate the appellant and the use of such statements to exculpate him.

18. Nevertheless, in the judgment of the Court of Criminal Appeal, which heard appeals by the appellant and Calder on a number of grounds, the Court referred to "Ground 7" and said:

" As indicated in the outline of the facts earlier set out in

this judgment, evidence was led before the jury of statements said to have been made by Calder to the witnesses, Duiker and Goodman, at the Cranbourne farmhouse occupied by the couple, and, a little later, to Duiker when she was driving Calder home.

Counsel appearing for Bannon in the trial contended that these

statements were of importance to his client's case as they not only involved the acceptance by Calder of responsibility for the killing of the two victims, but expressed as they were in the singular, that they indicated that she had acted alone."

The Court rejected this ground. In doing so their Honours discussed the case law relating to the admissibility of such statements and concluded that they were inadmissible as hearsay. But the Court did not refer to any particular passage of the trial judge's direction nor to his Honour's discussion with counsel after the jury had retired. Before this Court counsel for the appellant approached the matter as one of principle, not focusing so much on the evidence of what Calder had said and the implications of those remarks. Counsel for the respondent followed suit save at the end of his address when he directed attention to the evidence itself, though for the purpose of submitting that in any event the proviso should be applied and the appeal dismissed on the ground that there had been no miscarriage of justice.

19. Earlier in this judgment mention is made of a passage from the trial judge's direction to the jury in which he said:

"What is said out of court and not in the presence of the

co-accused is not evidence in the trial of the other accused."

This is undoubtedly correct as a general proposition. Out of court statements are not evidence of the truth of what is said unless the statement falls within an exception to the rule against hearsay. One such exception admits evidence of a confessional nature against the maker. Another renders admissible a statement made by a third party, since deceased, which is against his or her pecuniary or proprietary interest.

20. 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(45). No Australian court, at least in any reported decision, appears to have taken the approach adopted by the Court of Appeal in England in R v Beckford(46) that if the consequences of inadmissibility are that the jury does not hear an alternative version of the events giving rise to the charge, the conviction of an accused may be unsafe and unsatisfactory and accordingly set aside. It should be noted that in Beckford the co-accused did not give evidence and the prosecution was unable to give evidence of the confession because the trial judge held that it was not given voluntarily(47).

21. In Lobban v The Queen(48) the Privy Council said that a judge in a criminal trial had no discretion to exclude the exculpatory part of a mixed statement containing admissions as well as an exculpatory explanation on which a defendant wished to rely, notwithstanding that the exculpatory material was prejudicial to a co-defendant. Their Lordships said that where the admission of evidence which was admissible against one defendant but not against his co-defendant resulted in real risk of prejudice to the co-defendant, the judge should ensure that the interests of the co-defendant were protected by explicit directions to the jury to the effect that the statement of one co-defendant was not evidence against the other or, in the last resort, by ordering separate trials(49).

22. The appellant submits that while support for his submission is lacking in decisions of the Australian courts, this Court should adopt the approach taken in Canada and the United States and hold that a third party confession, at any rate a confession by a co-accused which exculpates an accused, is an exception to the rule against hearsay. The appellant prays in aid statements in decisions of this Court that the hearsay rule should not be applied inflexibly(50).

23. While the common law recognises an exception against hearsay in the case of a declaration by a third party, since deceased, against interest, traditionally the interest has been confined to a pecuniary or proprietary interest rather than a penal interest(51). That limitation has been much criticised(52). It is no longer accepted in Canada, following the statement by the Supreme Court of Canada in R v O'Brien(53) that a "person is as likely to speak the truth in a manner affecting his liberty as in a matter affecting his pocketbook". Furthermore, the requirement that the declarant be deceased has broadened into a wider test of "unavailability"(54). This includes the disappearance of the declarant(55) and, possibly, circumstances in which privilege is claimed against the giving of such evidence(56). In the interests of "fairness", the extension to declarations against penal interest operates only in relation to declarations which exculpate the accused(57).

24. In O'Brien, Dickson J, who delivered the judgment of the Court, affirmed the requirements for admissibility enunciated by Hamilton LJ in Ward v HS Pitt and Co; Lloyd v Powell Duffryn Steam Coal Company(58) One of those requirements is that the fact or facts stated must have been to the maker's "immediate prejudice", "that is against his interest at the time when he stated it"(59). For this reason, a statement by a co-accused that he alone was responsible for the offence of being in possession of a narcotic for the purpose of trafficking was held inadmissible in circumstances where proceedings against the maker of the statement had been stayed and it appeared that he did not believe that he could be prosecuted. Likewise, in Demeter v The Queen(60) an alleged confession to a friend by a person already sentenced to life imprisonment for another crime was held inadmissible.

25. In the last few years Canadian courts have taken a broader approach still to the admission of hearsay evidence, permitting such evidence to be adduced where the evidence is "reliable" and its reception in hearsay form is reasonably necessary. In R v Khan(61), a judgment of the Supreme Court of Canada delivered by McLachlin J, evidence against an accused charged with sexual assault against a young child was given in the form of evidence from the child's mother as to what the child had told her. Necessity was inferred from the fact that the child was incompetent to give evidence and reliability from a number of circumstances including the lack of a motive for falsification. Khan was followed in R v Finta(62) and it has been applied in a number of other Canadian cases(63).

26. This wider approach, which looks to "necessary and reliable" criteria, has led to the admission of evidence which inculpates as well as evidence which exculpates an accused. And while, not surprisingly, the present appellant wished to confine any new exception to the rule against hearsay to statements exculpatory of him, he accepted that where a statement was capable of bearing both an exculpatory and inculpatory meaning, if an accused asked for the statement to be admitted as part of his case, there was no entitlement to a direction to the jury that they use the statement only if, or to the extent that, it carried an exculpatory significance.

27. In the United States, until recently, the leading authority in this area was Donnelly v United States(64) in which the Supreme Court of the United States was required to rule on whether the common law as it applied in federal courts excluded hearsay evidence relating to the confession of a third party, then deceased, of guilt of the crime with which the defendant was charged. The majority, in holding that the court below had properly excluded the evidence, referred to English authorities, including the Sussex Peerage Case, and to decisions in a number of States. In a succinct dissenting judgment Holmes J would have admitted the evidence on the basis that there was no binding authority of the Supreme Court against the admissibility of a confession which was essentially a declaration against interest: "no other statement is so much against interest as a confession of murder"(65).

28. In Chambers v Mississippi(66) the issue before the Supreme Court upon certiorari was whether there had been a violation of the constitutional right of the accused to due process by reason of a combination of two matters. The first was refusal to permit Chambers to cross-examine a third party who had made but later repudiated a written confession; Chambers had called the third party and he was in court. The second was the rejection, as hearsay, of the testimony of three persons to whom the third party had confessed. The Supreme Court held(67) that, taking these two matters together, the result had been a denial of due process. The Court pointed out(68) that, in Donnelly, the declarant had been unavailable at the time of the trial. Further, since Donnelly there had been a change in the applicable law of evidence. Exclusion of declarations against penal interest was no longer required under the new Federal Rules of Evidence which took effect on 1 July 1973. Rule 804(b)(5) provides that, if the declarant is unavailable as a witness, a statement is not excluded by the hearsay rule if a court determines that the statement is offered as evidence of a material fact, it is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and the general purposes of the Rules and the interests of justice will best be served by its admission. However, such a statement may not be admitted under this exception unless the proponent of it has made known his intention and given particulars to the adverse party sufficiently in advance of the trial to provide a fair opportunity to prepare to meet it.

29. In Chambers, the Supreme Court was not ruling upon the common law of Mississippi. However, it noted(69) that a number of States had discarded the common law rule which denied any exception to the hearsay rule in favour of declarations made against the penal interest of the declarant, and stated that the rationale for the traditional position had been the subject of considerable scholarly criticism. The Court also observed that, in the instant case, the circumstances provided "considerable assurance of ... reliability"(70).

30. The appellant submitted that the statements made by Calder appearing earlier in this judgment were "voluntary, spontaneous, unequivocal and inherently reliable". And, the submission continued, since Calder did not give evidence and could not have been compelled to do so(71), the jury should have been permitted to use the evidence of Duiker and Goodman as an exception to the rule against hearsay evidence. The "inherent reliability" of Calder's evidence was said to derive from her motive to kill Armstrong and Woodfall, her mental instability, her violent nature and strength, consistency of her statements with the appellant's unsworn statement, the lack of any reason on her part to lie and her apprehension of the penal consequences of her conduct.

31. The argument has a certain attraction but the considerations which are said to point to the reliability of Calder's statements go no further than to evidence the fact that Calder was the one who wielded the knife. The case against the appellant was that he either himself stabbed the victims or acted in concert with - or aided and abetted - Calder in doing so. Calder's ex-curial statements of her own involvement are therefore consistent with the Crown's case(72) except to the extent that it may be possible to construe them as meaning that she, without any assistance from or agreement by the appellant, killed Armstrong and Woodfall. To that extent, however, the factors which are said to support the reliability of those statements are either inapplicable or of little force. Moreover, the fact that any support which Calder's statements provide for the lack of voluntary involvement of the appellant depends upon the drawing of a dubious inference from the use of the singular effectively deprives them of the limited reliability in that regard which they might otherwise have possessed.

32. The appellant's submission faces a further obstacle. Under the tests for admissibility developed in Canada and the United States in the authorities to which reference has been made, the confession must have been to the "immediate prejudice" of the maker and, in the United States at least, it must have been corroborated by other evidence. In this regard mention should be made of the observation by Wigmore(73).

" It must be remembered that it is not merely the statement

that must be against interest, but the fact stated. It is because the fact is against interest that the open and deliberate mention of it is likely to be true. Hence the question whether the statement of the fact could create liability is beside the mark."

33. Thus, on the approach taken in the authorities upon which the appellant relied, the question is whether Calder apprehended that it was to her prejudice to have committed the offences alone, as opposed to having acted in concert with or having been assisted by the appellant. In Commonwealth v Colon(74) the Supreme Court of Pennsylvania concluded that:

"the fact stated in that portion of (the third party's)

confession which exculpated any possible accomplices was not against interest and hence that portion was inadmissible. By telling the police that he acted alone, (the third party) admitted no additional crime, subjected himself to no additional punishment. Since it was not contrary to (the third party's) interest to assert he acted alone, the portion of the statement in which he claimed to have acted alone does not have the safeguards of trustworthiness attributed to a statement truly against interest."

34. It may be argued that had the jury been permitted to construe Calder's admissions as exonerating the appellant, the consequence would have been to subject her to additional penalties. This springs from the statement by the Court of Criminal Appeal, when dealing with the applications made by both accused for leave to appeal against sentence, that since the trial judge found it impossible to discern any distinction in the role played by each of the accused while admittedly there was a distinction, each should have been sentenced as bearing the culpability of no more than an aider and abettor. If Calder were the principal offender, there was no justification for treating her in that manner. But this does not constitute a prejudice to Calder in the sense discussed in the authorities. Any prejudice derives, not from the statements themselves, but from the failure by the Court of Criminal Appeal to treat her admissions as sufficient to warrant sentencing her as the principal offender.

35. Furthermore, even if the admissions, to the extent that it is possible to construe them as impliedly exonerating the appellant, involved possible prejudice to Calder, there is no reason to conclude that she apprehended that the conversations would be reported by Duiker or Goodman. The only evidence that Calder acted "alone" is the appellant's unsworn statement. There is no corroboration of that statement. Also the reliability of any statement construed as an admission that Calder acted alone is at odds with Calder's statement that the appellant was also involved in the fighting.

36. Even on the construction of Calder's statements most favourable to the appellant, the requirements of prejudice and reliability which underlie the admissibility of such statements in Canada and the United States and upon which the appellant relies have not been satisfied. It is therefore unnecessary and inappropriate for this Court to determine whether it should follow the decisions in those countries which extend the exceptions to the rule against hearsay to third party confessions. This is particularly so when the impact of the direction to the jury was that they should not use Calder's statements as evidence against the appellant. There was only one occasion, and it is mentioned earlier in this judgment, when his Honour said: "What is said out of court and not in the presence of the co-accused is not evidence in the trial of the other accused." And it is apparent that counsel for the appellant did rely upon Calder's statements. While this Court was not furnished with the addresses of counsel, it is significant that in the course of his charge to the jury his Honour said:

" He (counsel for the appellant) also sought to rely upon

admissions made by her (Calder) in the videoed interview and to Duiker and to Goodman, all in an endeavour to advantage Bannon and to make it seem less probable that Bannon could have carried out these murders."

It is also significant that, as has been mentioned, counsel for the appellant did not seek any amended or further direction from the trial judge. In these circumstances it is hard to see that in any event this aspect could have caused any miscarriage of justice so far as the appellant is concerned. As mentioned earlier, the reliability of his conviction is not otherwise challenged.

37. It follows that the appeal should be dismissed.

McHUGH J The question in this appeal is whether evidence of out-of-court statements made by a co-accused of the appellant could be used in support of his defence that the co-accused and not the appellant was responsible for the two murders for which they were jointly tried. In my opinion, the statements could not be used as evidence to support the appellant's case. The appeal should be dismissed.

2. Anthony Charles Raymond Bannon, the appellant, and Kerry Leanne Calder were jointly indicted for the murder of Timothy Armstrong and Kylie Woodfall on 19 February 1991. The Crown alleged that Bannon and Calder committed the murders while acting in concert, one of them stabbing the deceased persons while the other aided and abetted the principal actor. Calder and Bannon denied the Crown claim, blaming each other for the murders. The jury convicted both of them.

3. Within two hours of the murders Calder made statements to two people which, in the context of other evidence in the case, suggested that she had killed the deceased persons. Those statements did not absolve the appellant from responsibility for the killings, but the appellant asserts that some of them impliedly provided support for his defence. He sought to use them as evidence of his innocence.

4. The relevant statements were made to Brett Goodman and Cynthia Duiker to whose farmhouse the appellant and Calder went shortly after the killings. Goodman was a person who had supplied marijuana to Calder on previous occasions, and Duiker and Goodman were on friendly terms with her. Calder and the appellant sought assistance from Goodman and Duiker in treating a wound to Calder's foot which had been inflicted at the scene of the killings when Calder had stabbed herself in the foot. Part of the blade of the knife had broken off and was still embedded in her foot when she arrived at the farmhouse(75). The statements upon which the appellant seeks to rely were made at different times after the appellant and Calder arrived at the farmhouse. They are as follows:

1. "(T)hat's what you get when you kick knives out of people's hands".

2. "Oh fuck I don't know, I think I've killed these cunts".

3. "You don't understand, I just can't go to a doctor. I could have killed these couple of people tonight in this knife fight".

4. "You just don't understand, you know too much already, these people are dogs ... I could have killed two people but it does not matter, it is not a worry, prison means nothing to me".

5. At no stage did the learned trial judge instruct the jury that they could not use Calder's statements in support of the appellant's case although his Honour did instruct the jury that they could not use them against him. Moreover, one of his Honour's directions at least inferentially instructed the jury that they could take account of the statements in so far as they supported the appellant's case. The relevant directions were as follows:

"Whilst it is in the interests of justice and convenient that two

trials be conducted together in this way, each accused is entitled to have you, the jury, consider the case against him or her and his or her defence separately from the case against the other accused."

"You may not use Calder's admissions to the police which

implicate Bannon against him, nor may you use (the appellant's) unsworn evidence which implicates Calder against her. What is said out of court and not in the presence of the co-accused is not evidence in the trial of the other accused".

"What Calder said to someone in the absence of (the appellant)

may only be used against her and not against (the appellant)".

"(W)hat was said in the car as Duiker drove Calder home ... was

not in the presence or the hearing of (the appellant), so what she said there could not in any shape or form be used in (the appellant's) trial against him".

"(Counsel for the appellant) also sought to rely upon admissions

made by (Calder) in the videoed interview and to Duiker and to Goodman, all in an endeavour to advantage (the appellant) and to make it seem less probable that (the appellant) could have carried out these murders."

6. The Calder statements did not expressly exculpate the appellant. Nor does the fact that they contain admissions by Calder that she stabbed the deceased persons absolve the appellant from responsibility for the murders, for the Crown contended that, irrespective of who did the stabbing, the appellant and Calder acted in concert. However, the appellant contends that the statements made by Calder to Goodman and Duiker contain an implied assertion that she alone killed the deceased persons and that the statements were admissible to support his defence that he did not participate in the murders.

7. In answer to this contention of the appellant, the respondent says that evidence of the statements was not admissible in favour of the appellant because it was hearsay evidence.

8. In Subramaniam v Public Prosecutor(76), the Privy Council said:

"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."

Because the hearsay rule applies to implied as well as express assertions(77), prima facie, that rule prevented the appellant from using the Calder statements to prove that she alone was responsible for the murders(78).

9. The appellant accepts that, if evidence of Calder's statements was admitted in support of his case for the purpose of proving that she alone was responsible for the murders, it was hearsay evidence. He also concedes that none of the exceptions to the hearsay rule that have been recognised by the courts of this country allowed evidence of Calder's out-of-court statements to be used as evidence in his favour. Nevertheless, he contends that this admittedly hearsay evidence should have been admitted in his favour either: (a) as an example of the flexible application of the hearsay rule as evidenced by statements in recent judgments of this Court; or (b) by developing a new exception to the hearsay rule - declarations against penal interest; or (c) by adopting a new exception recently invented by Canadian courts, viz, hearsay evidence that is "necessary and reliable".

10. The appellant contends that the so-called "flexible exception", which was first formulated in Walton v The Queen(79) by Mason CJ, required the admission of Calder's statements as evidence in his favour. In Walton(80), Mason CJ said:

"When the dangers which the rule seeks to prevent are not present

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

Other judges in this Court have also accepted the proposition that exceptions to the hearsay rule should be developed when justice requires it and the evidence will be reliable(81). Some writers have seen Walton and the statements in subsequent cases as signals that this Court is now willing to take a "more flexible approach to the hearsay rule, a willingness to apply it as a principle rather than as a strict rule"(82). However, no case in this Court has decided that the law of hearsay is a principle rather than a rule with exceptions or that the rule is always subject to an exception in the case of evidence that is "reliable".

11. But it is not necessary in this case to decide whether the hearsay rule is subject to an exception corresponding with that formulated by Mason CJ in Walton. Even if such an exception exists, the statements of Calder do not meet the required conditions of reliability and probative value. Evidence at the trial suggested that Calder had a severe personality disorder, one aspect of which was that she suffered from hallucinations(83). Indeed, she told the doctor who removed the blade from her foot that one of her voices, "George", had directed her to stab herself. In addition, her statement that kicking knives out of others' hands was the cause of the knife in her foot was demonstrably false. However, neither her personality disorder nor the fact that one of the statements was false means that her other statements and any implication in them were unreliable. After all, the Crown relied on the admissions in those statements to convict Calder of the murders and to rebut her claim, made in a videotaped record of interview, that the appellant was solely responsible for the murders. Nevertheless, it does not follow that, because the admissions in those statements were reliable, the statements have sufficient reliability and probative value to prove an implied assertion that Calder alone was responsible for the murders.

12. The whole basis of the appellant's claim that the statements contain this implied assertion is the use of the singular "I". This is a weak basis for claiming that the statements exculpate or are capable of exculpating the appellant from complicity in the killings, even when the statements are isolated from their context and the other evidence in the case.

13. Even if there were no contrary indication in the rest of the evidence, I do not think that Calder's statements could be regarded as having sufficient reliability and probative value to justify their admission under the flexible application of the hearsay rule on the ground that they impliedly exculpated the appellant from any involvement in the murders. There is, however, a strong contrary contextual indication that the relevant statements were not intended to imply that the appellant was not involved in the killings. Duiker gave evidence that, while she was cleaning Calder's foot, she asked her "how it happened" and that Calder had said "that herself and the other bloke was involved in a knife fight in the Dandenong area". The reference to the "other bloke" was plainly a reference to the appellant and the reference to the knife fight was plainly a reference to the knife fight to which she referred in the other statements upon which the appellant relies. In this context, it is virtually impossible to contend that, when Calder made her statements, she intended to assert to Goodman and Duiker that the appellant had taken no part in the killings. Calder's statement that both she and the appellant were involved in the knife fight is quite inconsistent with the appellant's claim that he was tied up at the time of the killings. In addition, if the reliability exception allows the trial judge to consider more than the context of and the circumstances surrounding the making of a statement and its intrinsic reliability, the most persuasive conclusion on all the evidence in the case is that Calder's statements to Goodman and Duiker are unreliable if they imply that Calder was solely responsible for the killings. Contrary to the appellant's claim that he took no part in the murders, the evidence as a whole strongly suggests that, although Calder may have initiated the killings - may indeed have been the principal actor - the appellant was a willing and probably active participant in what occurred.

14. Assuming, therefore, that there is a flexible exception in respect of statements that are reliable and have probative value, the statements made by Calder were not admissible in favour of the appellant.

Declaration against penal interest exception to the Hearsay Rule

15. At common law a declaration made by a deceased person is admissible in evidence if the making of the declaration was against the proprietary or pecuniary interest of the deceased or a person who was otherwise unavailable as a witness. Such a declaration was admissible in evidence whether or not the estate of the deceased or the unavailable person or privies were involved in the litigation in which the evidence was tendered.

16. The appellant contends that the Court should extend this common law rule so as to include out-of-court statements by persons who are unavailable to give evidence if the statement exposed the person to penal consequences when it was made. The appellant contends that, if this Court adopted that extension, Calder's statements were admissible in his favour because she did not give evidence at the trial and could not have been compelled to give evidence.

17. In the Sussex Peerage Case(84), the House of Lords refused to extend the exception to a declaration that merely exposed the maker to penal consequences. Lord Campbell said(85) that "it would lead to most inconvenient consequences, both to individuals and to the public, if we were to say that the apprehension of a criminal prosecution was an interest which ought to let in such declarations". Australian(86) and English(87) cases have accepted the statement of Lord Campbell as accurately reflecting the modern common law. In contrast, Canada and some American jurisdictions recognise the penal interest exception.

18. The principal reasons advanced for excluding evidence of statements against penal interest are that such declarations are easily fabricated by the witness or the declarant(88) and that persons have many motives to "confess" to crimes that they have not committed(89). The principal reasons advanced for admitting such evidence are that an accused person's right to a fair trial entitles him or her to present any evidence which may rationally lead the jury to have a doubt as to the accused's guilt and that a statement against someone's penal interest is as reliable as a statement against pecuniary or proprietary interest because people are unlikely to speak falsely to their own detriment(90).

19. In jurisdictions that admit the penal interest exception, the courts have accepted that the trial must be protected from unreliable evidence, but at the same time they have concluded that the admission of apparently reliable evidence is more important than requiring the evidence to face the checks on reliability that are inherent in the trial process(91). Nevertheless, those courts that adopt the penal interest exception have accepted that the object of the hearsay rule is to protect the tribunal of fact from acting on unreliable evidence and they have devised threshold tests to separate reliable declarations from unreliable ones. Thus in Canada, courts have developed an exception with several prerequisites(92): (a) the declarant must have appreciated the potential penal consequences of the statement; (b) the possibility of penal consequences cannot have been too remote; (c) the statement must really be against the declarant's interest; (d) the declarant must be unavailable because of death or other reason that makes it impossible or impracticable to call the declarant; and (e) the statements must not inculpate the accused.

20. The seminal cases in Canada are Demeter v The Queen(93) and R v O'Brien(94). In Demeter, the Supreme Court found it unnecessary on the facts of the case to determine whether there was an exception for declarations against penal interest. However, it said that the principles suggested by the Ontario Court of Appeal in the court below for determining whether a declaration is against penal interest would "furnish a valuable guide for consideration in the event that this Court should determine that a declaration against penal interest is not to be held inadmissible"(95). Thus:

"(1) The declaration would have to be made to such a person

and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result. ... In ordinary circumstances where a declaration is made ... to an unestranged son, wife or mother, the psychological assurance of reliability is lacking because ... (the) risk of penal consequences is not real and the declarant may have motives such as a desire for self-aggrandizement or to shock which makes the declaration unreliable.

(2) The vulnerability to penal consequences would have to be not remote.

(3) (T)he declaration ... to be considered in its totality. If upon the whole tenor the weight is in favour of the declarant, it is not against his interest ...

(4) In a doubtful case a Court might properly consider whether or not there are other circumstances connecting the declarant with the crime and whether or not there is any connection between the declarant and the accused.

(5) The declarant would have to be unavailable by reasons of death, insanity, grave illness which prevents the giving of testimony even from a bed, or absence in a jurisdiction to which none of the processes of the Court extends."(96)

Those requirements would be additional to the requirements for determining whether a declaration is against pecuniary or proprietary interest that were formulated by Hamilton LJ in Ward v HS Pitt and Co; Lloyd v Powell Duffryn Steam Coal Company(97).

21. Shortly after the decision in Demeter, the Supreme Court in O'Brien(98) accepted that the penal interest exception was part of the law of Canada. The Supreme Court held that there was little or no reason why declarations against penal interest and those against pecuniary or proprietary interest should not stand on the same footing. The Court concluded that the distinction between declarations against penal interests and those against proprietary or pecuniary interests was arbitrary because a person "is as likely to speak the truth in a matter affecting his liberty as in a matter affecting his pocketbook"(99). Accordingly, a declaration against penal interest was held to be admissible in Canada in a proper case. The exception rested upon necessity and presumed trustworthiness. The Court said that, to be admissible, there must be a realisation by the declarant that the statement may be used against him(100).

22. The principles were further refined in Lucier v The Queen(101) where the Supreme Court said:

"Having regard to the judgment of this Court in the Demeter and

O'Brien cases, it must now be recognized that in a proper case statements tendered on behalf of the accused and made by an unavailable person may be admitted at trial if they can be shown to have been made against the penal interest of the person making them; but neither the two cases to which I have just referred nor any of the wealth of authorities cited in the Courts below apply such a rule to statements which have an inculpatory effect on the accused. On the contrary, wherever such statements have been admitted it will be found that they have an exculpatory effect. The difference is a very real one because a statement implicating the accused in the crime with which he is charged emanating from the lips of one who is no longer available to give evidence robs the accused of the invaluable weapon of cross-examination which has always been one of the mainstays of fairness in our Courts."

23. In America, the penal interest exception was first canvassed by Holmes J in his dissenting judgment in Donnelly v United States(102), a case concerned with the confession of a third party to murder, who was deceased at the time of the trial. In a short judgment, Holmes J held that the English decisions to the contrary did not bind American courts and that such confessions were admissible because they were against interest and more convincing than dying declarations(103). Since then, some State and federal courts have followed the reasoning of Holmes J. In addition, statutory exceptions have been introduced(104).

24. Like Canada, United States jurisdictions that admit declarations against penal interest impose conditions on admissibility. While these conditions vary, they nearly all contain a requirement of reliability, a requirement which is not satisfied merely because the declaration is against penal interest. Examples of these conditions are:

(a) the statement against penal interest must be corroborated by "substantial" independent evidence(105);

(b) the declarant must be aware when making the statement that it is presently against his or her penal interest(106);

25. The principal distinction between the conditions of admissibility in Canada and the United States jurisdictions is that a requirement of corroborative evidence is required in some jurisdictions in the United States.

26. The appellant argues that, if the penal interest exception formulated in Canada had been adopted in Australia and applied to the Calder statements, the statements would have been admissible as evidence in his favour. But I am unable to accept that the statements would be admissible under Canadian law for that purpose. Canadian courts insist on proof of reliability. For the reasons I have given with respect to the contention based on the "flexible exception", Calder's statements could not be regarded as reliably indicating that the appellant was not involved in the killings. Moreover, having regard to Calder's relationship with Goodman and Duiker, it is doubtful whether Calder believed that making the statements could lead to her prosecution for the murders. Calder's statements would not, therefore, be admissible in favour of the appellant even if this Court adopted the Canadian jurisprudence on the penal interest exception to the hearsay rule.

27. The reasons that would make the statements of Calder inadmissible in favour of the appellant under Canadian law would also make them inadmissible in most United States jurisdictions(108). If the need for corroborative evidence that some United States jurisdictions require were also adopted as a condition of admissibility in Australia, the appellant would fail to establish it. There is no corroborative evidence that Calder alone, without any assistance or encouragement from the appellant, killed the victims. On the contrary, the evidence as a whole points strongly to the appellant's involvement. Moreover, as Wigmore points out(109): "it is not merely the statement that must be against interest, but the fact stated". In so far as the statements of Calder implied that she acted alone, that fact exposed her to no additional penal consequence. It was for that reason that in Commonwealth v Colon(110) the Supreme Court of Pennsylvania held that so much of a confession by another person that exculpated the accused was inadmissible in his favour because it was not contrary to the confessor's interest to assert that he acted alone.

28. In recent years, Canadian courts, building on the dissent of Lord Pearce in Myers v Director of Public Prosecutions(111) have developed a further exception to the hearsay rule. In cases where evidence of an out-of-court statement is "necessary and reliable", it is admissible. The leading case is R v Khan(112) where Khan, a medical doctor, was charged with sexual assault of a three and a half year old girl. Because the girl was incompetent to give evidence, the prosecution tendered evidence by the girl's mother of a conversation that she had with her daughter about fifteen minutes afterwards, a statement that strongly suggested that Khan had sexually assaulted her. The trial judge rejected the tender on the ground that the statement was inadmissible hearsay. Khan was acquitted. The Ontario Court of Appeal ordered a new trial, holding that the hearsay rule should be relaxed in the case of child witnesses. The Supreme Court of Canada dismissed Khan's appeal holding that hearsay evidence of a child's statement concerning a crime committed against the child should be received "provided that the guarantees of necessity and reliability are met, subject to such safeguards as the judge may consider necessary and subject always to considerations affecting the weight that should be accorded to such evidence"(113). The Court held that the mother's statement was admissible.

29. The principle of necessity and reliability was also applied in R v Chahley(114) where, on a charge of murder, the accused sought to adduce evidence from the deceased's girlfriend that a few days before his death the deceased had said that a black man had pulled a knife on him and he could not go down town for a while. The trial judge held this was inadmissible hearsay and excluded it. The British Columbia Court of Appeal held that the evidence should not have been excluded. The statements were admissible as evidence of the deceased's intention. Further, the evidence that a black man had pulled a knife on the deceased should be admitted for its truth as an exception to the hearsay rule. The court said that the law permits hearsay evidence to be admitted which is logically probative of some fact in issue at trial if it meets the tests of necessity and reliability, even if that evidence cannot fit in any of the established hearsay exceptions. The test of necessity(115) was met because the declarant was dead and there was no evidence suggesting any other source of admissible proof for the event described in the deceased's statement. The statement was also made under sufficiently reliable circumstances(116) as to meet the test of reliability or "trustworthiness". The statements attributed to the deceased were not made in his favour, were made before the dispute or litigation, and the deceased had a peculiar means of knowledge. The issue was not the reliability of the witness who testifies as to the statement but the trustworthiness of the out-of-court statements(117).

30. The principle has been applied in subsequent cases. In R v Finta(118), the accused was tried for war crimes allegedly committed in Hungary in 1944(119). The Supreme Court of Canada held that evidence given at a trial in Hungary after the war by a person who had since died was admissible. In R v Edwards(120) the principle was again applied in favour of the Crown. Edwards was convicted of trafficking in narcotics. The Ontario Court of Appeal held that evidence of police officers was rightly admitted to prove that they had answered Edwards' phone and pager and received requests from the callers for the supply of crack cocaine. The Court said that, even if the requests were hearsay(121), the evidence was admissible as it was necessary and reliable. It was necessary to prove the nature of the accused's drug activities which could not be proven in any other way (as the callers could not be called as witnesses) and the evidence was reliable because it was made under circumstances negating the possibility that the requests were "spurious ones"(122).

Bannon v R [1995] HCA 27;

At a glance

Court

Decision date

Before

Source

Judgment (282 paragraphs)

Bannon v R [1995] HCA 27; (1995) 185 CLR 1 (9 November 1995)

Parties

Cases Cited (12)