Supreme Court of Tasmania|1989-06-09|Before: Green CJ, Wright JJ, Neasey J, Nettlefold J, Underwood J

Gardenal-Williams v R [1989] TASSC 29 (9 June 1989)

CITATION: Gardenal-Williams v R [1989] TASSC 29; (1989) Tas R 62; A23/1989

JUDGMENT OF: Green CJ, Neasey, Nettlefold, Underwood and Wright JJ

1 The appellant was convicted of arson contrary to s268 of the Criminal Code. Because of the nature of the submissions which counsel for the appellant indicated he proposed making, the court before which the hearing commenced granted an application that the hearing be adjourned so that the appeal could be heard by a court comprising five judges.

2 The Crown case was in essence that the appellant unlawfully set fire to the dwelling house in which she resided as a tenant by lighting a number of fires including one which resulted in a linen cupboard catching fire which in turn caused the house to ignite. Although the house was not burnt down it was open to the jury to find that the fabric of the house was burnt sufficiently to constitute the crime of arson. The Crown case did not establish any motive for the crime.

3 In addition to some direct evidence which tended to establish some elements of the crime but which did not implicate the appellant the evidence presented by the Crown comprised principally evidence of a signed record of interview and some circumstantial evidence. The appellant gave evidence in the course of which she said that she did not light the fire and was not present when it was started. She admitted that the police had interviewed her but denied that the record of interview was typed in her presence, denied that she had made the incriminating admissions attributed to her and asserted that she signed the record of interview under pressure and because of a promise made by a police officer that "she would fix up any mistakes that were in it" after the appellant had signed it. At the trial the learned trial judge directed the jury, and the Crown virtually conceded, that if the jury entertained a reasonable doubt as to whether the record of interview was an accurate record of what was said. or as to whether the accused's admissions were true, they would be obliged to acquit the accused.

"(aa) The Applicant's conviction should be set aside on the basis that the Court of Criminal Appeal was on in error in The Queen -v- Hodgson No 40/1985 in holding that a person can be convicted of arson notwithstanding that a jury was not satisfied beyond reasonable doubt that he or she did not intend to bring about 'the result charged in the indictment and/or alternatively that a person could be convicted of arson if an' accused deliberately did a willed act aware at the time that he/she did the act that the result charged in the indictment was a likely consequence of the act and recklessly did the act regardless of the risk."

"(a) the Learned Trial Judge erred in law in failing to admit into evidence pursuant to Section 81B of the Evidence Act 1910 the Applicant's written statement of the 22nd September 1987;"

5 This is not a ground of appeal as it alleges no error in the conduct of the trial. However what the appellant is intending to assert in this ground is that the learned trial judge misdirected the jury when he directed them that it would be open to them to be satisfied, as required by s267(3) of the Code, that the act of the accused in igniting the material in the linen cupboard was done wilfully if they were satisfied either that she "intended the house to be set on fire, or she recklessly set fire to the contents of the cupboard, knowing that there was a high degree of likelihood that the fire would spread to the fabric of the house and set it on fire, but choosing to accept the risk of this happening". That direction was in accordance with the decision of this Court in R v Hodgson [1985] TASSC 40; 1985 Tas R 75 but the appellant submits that that decision was incorrectly decided and should be overruled by this Court.

6 In Arnol v The Queen 1981 Tas R 157 this Court held that it had the power to overrule its own decisions. At p164 I made the following observations, with which Cosgrove J concurred, about the circumstances under which that power should be exercised: -

"I do not propose attempting to exhaustively state the circumstances under which it might be appropriate for this Court to review its own decisions, but I think that the Court would be justified in doing so when the earlier decision is shown to have been arrived at without regard to an applicable statutory provision or binding authority, when the chain of reasoning employed in the earlier decision contains a manifest - as opposed to a merely arguable - contradiction or flaw which vitiates the conclusion reached, or when in the meantime legislation, case law, or other material circumstances have undergone changes which have had the effect of altering the basis upon which the earlier decision was reached. However, it would be wrong for this Court to review an earlier authority merely because it preferred a different view of the law than that which was taken in the earlier case."

Counsel in this case did not submit that we should not follow Arnol's case. I adhere to what I said in that case.

7 Counsel for the appellant submitted that since _Hodgson'_s case was decided the law governing the principles applicable to the interpretation of penal statutes has undergone a significant change and he cited He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 and the following passage from the joint judgment of Deane, Dawson and Gaudron JJ in Murphy v Farmer [1988] HCA 31; (1988) 79 ALR 1 at p7: -

"The provision is, in our view, properly to be seen as penal or quasi-penal in character and as attracting the rule that 'those who contend that [a] penalty may be inflicted, must shew that the words of the Act distinctly enact that it shall be incurred under the present circumstances. They must fail, if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty' (Dickenson v Fletcher (1873) LR 9 CP 1 at 7). In Lyons v Smart [1908] HCA 34; (1908) 6 CLR 143 at 157-8, Barton J quoted the above words of Lord Esher (then Brett J) in Dickenson v Fletcher with approval and continued:

'It is as true now as when Blackstone wrote it, that "The law of England does not allow of offences by construction". To these expressive authorities I may add, for the sake of the clear way in which it is put, a quotation from the American case of United States v Lacher [1890] USSC 140; 134 US 624 at 628. The words are those of Fuller CJ delivering the opinion of the court. He said: "As contended on behalf of the defendant, there can be no constructive offences, and before a man can be punished, his case must be plainly and unmistakably within the statute".'"

That passage may be contrasted with the following observations of Gibbs J in Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576: -

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by defusing to extend the category of criminal offences: see R v Adams [1935] HCA 62; (1935) 53 CLR 563, at pp567-568; Craies on Statute Law, 7th ed (1971), pp529-534. The rule is perhaps one of last resort."

8 I am quite unpersuaded that the observations made in Murphy v Farmer could possibly be regarded as reflecting a change in the law: at the highest they might be regarded as presenting a modest change of emphasis. Nothing put to me persuades me that there has been any change in the law which has had the effect of altering the basis upon which the decision in Hodgson's case was reached.

9 Counsel also argued that Hodgson's case should be overruled on the ground that it was incorrectly decided. However in my view counsel's submissions amounted to no mare than an attempt to re-argue the questions which were considered in that case and did not demonstrate the existence of a manifest defect in the reasoning employed in Hodgson's case such that this Court would be justified in reconsidering it.

10 I am not persuaded that the appellant has shown that any circumstances exist which would justify this Court embarking upon a reconsideration of the decision in Hodgson's case.

11 In my view this Court should make a declaration of the position it proposes to adopt in the future in the event of a party seeking to argue that it should review or overrule one of its own decisions. To that end I make the following statement with the authority of all the members of this court:

1 Although the Court of Criminal Appeal is not absolutely bound by its own decisions the court will not hear argument that a previous decision of the court should not be followed unless leave has first been obtained to do so.

2 Notice that such leave will be sought shall be included in the written outline of submissions of the party seeking leave.

3 In the event of such leave being granted, the hearing will then ordinarily be adjourned and the whole appeal will be heard and determined by a bench of five judges.

4 A bench of five judges hearing such an appeal may ordinarily be expected to hear the argument that the previous decision should not be followed without any further leave or persuasion being required.

5 This statement also applies to proceedings before a Full Court.

12 The crime was alleged to have been committed in the evening of Friday 18 September 1987 and the interview with the police which it was claimed was recorded took place in the morning on Saturday 19 September 1987. At the end of her examination-in-chief the appellant sought to tender, pursuant to s81B of the Evidence Act 1910, a statement recording inter alia her version of what had occurred on Friday 18 and Saturday 19 September which she had written out on Tuesday 22 September 1987. Counsel for the Crown objected to its admission and the appellant gave evidence on the voir dire. She said that on Tuesday 22 September her solicitor told her "to go home straight away and write down my version of what had happened while it was still fresh in my mind" and that she did "exactly that". In cross-examination she agreed that she had talked to other people about what had occurred on the Saturday on two or three occasions on the Saturday, on one occasion on the Sunday and once on the Tuesday morning when she saw her solicitor.

13 The learned trial judge refused to admit the document on the ground that he was not satisfied that the representation was made at a time when the facts stated in the document were fresh in the memory of the appellant as required by s81B(1)(c)(i). His Honour said that he was not so satisfied: -

"... for a number of reasons. One is that a number of days had gone by. Secondly, there has been evidence of discussions with other people. And that the fact that the passage of time, the discussions with other people and the very predicament in which the accused was, all raise the possibility, indeed, it may be categorised as more than a possibility that the representations made on that Tuesday were not truly the products of fresh memory but may have been affected by innocent or conceivably by deliberate reconstruction on her part. I do not regard, in the circumstances, in this case, the evidence as establishing that the representation was made at a time when the facts stated in the document were fresh in her memory. For that reason I rule that Section 81B does not avail her."

14 It should be noted at the outset that his Honour did not reject the evidence in the exercise of his discretion but because he was not satisfied that the statutory requirements had been met.

15 For the following reasons I have reached the conclusion with respect that his Honour's reasons for arriving at the conclusion he did cannot be supported:

1 Although the length of time which elapsed between the police interview and the time when the statement was made was relevant to his Honour's determination it was not so great as to give rise of itself to the inference that the facts were not fresh in the appellant's memory, particularly in the absence of cross-examination or other evidence about what effect if any that that lapse of time had had upon the appellant's mind.

2 In the absence of cross-examination upon the matter there was no evidence from which an inference could have been drawn that the conversations which took place between the appellant and others on the Saturday, Sunday or Tuesday had affected the freshness of her memory of the relevant facts.

3 The appellant's evidence-in-chief was tantamount to an assertion that when she wrote the statement the facts were still "fresh in [her] mind". As that assertion was not inherently incredible and was not contradicted by other evidence and as the appellant was not cross examined upon it there does not appear to have been any reasonable basis for rejecting it: see Precision Plastics Pty Ltd v Dennis [1975] HCA 27; (1975) 132 CLR 362 at 370 and 371.

16 Although I share the learned trial judge's view that the probative value of a self serving statement of this kind is slight, I could not say that I am persuaded that the evidence was of so little weight that no miscarriage of justice actually occurred as a result of its exclusion.

17 I would allow the appeal, quash the conviction and sentence and order that a new trial be had.

18 I agree with the treatment by Wright J in his reasons for judgment, which I have had the advantage of seeing in draft, of the approach which the Court of Criminal Appeal of this State should take when asked to review and overturn one of its previous decisions. I accept the principles stated by Green CJ and concurred in by Cosgrove J in Arnol v The Queen [1981] Tas SR 157. I think that it should remain exceptional for a court of five judges to be convened for any purpose, but that where leave is given to argue that a previous decision should be reviewed, the review should ordinarily be undertaken by a bench of five. Once leave is given by a court of three, the larger court should in my view proceed immediately to the review. It would be unnecessary and unwieldy for a sort of double leave to be required, as would be the case if a bench of five judges should expect to have a veto of the decision by a court of three giving leave for the review to be argued.

19 These proposed rules have in effect been followed in the present appeal. Learned counsel for the appellants was able to persuade the original court of three to propose that a court of five judges be convened, and counsel was permitted to proceed immediately to argue before the latter the case for review. Although I agree with Wright J that in the result no sufficient reason was advanced before the court of five for reviewing The Queen v Hodgson (1985) Tas SR 75, nevertheless, since the question of its correctness was fully argued and I am of the view that the majority decision in that case was right, I think it would be desirable to state my reasons for reaching that conclusion.

20 The previous decision of the Full Court in Hodgson (supra) which the appellant asked this court to review was, by a majority, Nettlefold and Cox JJ, Cosgrove J dissenting, that the effect of s267(3) of the Criminal Code as applied to the crime of arson is that the crime may be committed by a person acting recklessly in the sense that it is a likely consequence of his conduct that the setting on fire will occur, but proceeds with his conduct regardless of that risk. Section 267(3) provide that: -

"An Act causing injury to property hall not constitute a crime under this chapter unless it is done wilfully and without claim of right."

I agree with that part of the judgment of Cox J in Hodgson's case (supra), which relates to this aspect, but wish to add the following observations in relation to the meaning of the word "wilfully" in s267(3).

21 "Wilful" and "wilfully" have been used in a variety of legal contexts, criminal, quasi-criminal and civil - see, eg Words and Phrases Legally Defined, 2nd ed (Butterworths, 1970) vol. 5, pp 333-340. In the great majority of cases involving conduct which is criminal or constitutes a statutory offence it will be found that the word (I treat them here as one) implies something blameworthy in the state of mind accompanying the conduct which is to be "wilful" - for example, wilfully, meaning intentionally ("that is, not by accident or inadvertence, but so that the mind of the person who does the act goes with it") neglecting a child, as in R v Senior [1899] 1 QB 283 at pp290-291; acting wantonly or without cause Smith v Barnham (1876) 1 Ex D 419, at pp422-3, where the offence was wilfully throwing rubbish into a watercourse; "wilfully" injuring a dog by using excessive force in defending against its attack - Hanway v Boultbee & Ux 1 M and Rob 18; [1830] EngR 888; 174 ER 6; or intentionally doing something knowing one has no right to do it, as in wilful neglect to pay maintenance or the like - National Assistance Board v Prisk [1954] 1 All ER 400, at p401; Cooper v Cooper [1941] HCA 17; (1941) 65 CLR 162; or insisting on staying on as a tenant knowing there is no right to do so - French v Elliot [1959] 3 All ER 866, at p874. Those are just a few examples from a very large number which are to a similar effect. Even in a civil context, "wilful" will be found often used in respect of conduct which is unreasonable or captious - for example, in the field of contract law, Bennett v Stone [1903] 1 Ch 509 (CA), at pp514-515 - "wilful default"; or acquisition of land, Re East End Docks & Birmingham Junction Railway Act, Ex p Bradshaw [1848] EngR 800; (1848) 16 Sim 174, at pp175-176 - "wilful refusal".

22 This usage accords with the most appropriate of the dictionary definitions. The word is capable in ordinary speech of a wide range of meaning. Thus, the Shorter Oxford English Dictionary (vol. 2, p2549) gives the following for "wilfully": -

"1 willingly, readily; patiently, submissively. 2 Of one's own free will, of one's own accord, voluntarily. According to one's own will;: at will, freely. 3 Purposely, on purpose, intentionally, deliberately. Chiefly, now always, in bad sense; occasionally implying maliciously. 4 In a self-willed manner; perversely, obstinately, stubbornly."

Of these meanings, the third is the nearest to being appropriate for the present purpose.

23 The expression in s267(3), "an act causing injury to property", is only a gerundial way of saying, "an act which causes injury to property". The "act" is that to which s13(1) refers; namely, the physical act or conduct - ie that which is done - Vallance's case [1961] HCA 42; (1961) 108 CLR 56. Arson is one of the grimes of causing injury to property under chapter XXXI. The crime consists of the physical act or conduct and its consequence. In arson, the "act" is, for example, holding a lighted match so that the flame comes in contact with combustible material, or throwing a lighted brand into such material, or any other such act which can have the effect of setting fire to something. The consequence, of course, is that something is set on fire; in the case of arson, a building, erection or structure attached to the soil, or a stack of timber etc. The act must cause the setting on fire in arson, or other proscribed injury to property in other sections of chapter XXXI.

24 Such act which causes injury to property, in order to incur criminal liability at all must be done voluntarily and intentionally, to satisfy s13(1). But in addition, if it is to constitute a crime under chapter XXXI, s267(3) requires inter alia that the act be done wilfully; which means that its intentional performance must be accompanied and qualified by a blameworthy state of mind. This is equivalent to saying that the intention itself may be characterised as blameworthy. In the case of arson the accompanying state of mind, plainly, must be orientated in some way to the proscribed consequence of the act; namely the setting on fire. If the actor, holding a lighted match to a bundle of dry grass set beside a wooden house, long enough to set the grass alight, desired the consequence that the house be set on fire, or foresaw that consequence as a certainty, clearly his act would have been done with required blameworthy or culpable intention, that is "wilfully", in relation to that result.

25 But desire of the consequence, or foresight of it as a certainty, are not the only states of mind accompanying the intentional act which make the intention blameworthy in the context of arson. In Hodgson's case when directing the jury I placed too narrow an interpretation upon the word "wilfully". Sir Victor Windeyer's apt and elegant metaphor of the palimpsest is applicable here (see Vallance v the Queen (supra) at p76; and also Murrey v The Queen [1962] Tas SR 170 per Burbury CJ at p172, and Hodgson's case (supra) per Cox J at p104) . The precise application of the word "wilfully" in a criminal setting depends upon the context, so we can legitimately in the case of this ancient crime look for guidance to legal history and the relevant law in other jurisdictions.

26 Professor Kenny, in relation to arson as a common law felony and the statutory extensions of it writes: -

"In early English law attacks upon property which were not made for purposes of gain to the offender but which were inspired by feelings of vindictiveness, or even by a reckless impulse to do damage, were almost entirely left to be remedied by the civil action of trespass.

So that, at common law, the only kind of damage to property to rank as a criminal offence was arson, which consisted of the wilful and malicious burning of a dwelling-house. This crime was extended by early statutes to the burning of other buildings and things, and thereafter the legislature by a series of enactments steadily widened the protection which the criminal law would give to property of a great variety of kinds. During this development the draftsmen of the statutes in question formed the practice of describing the criminal damage mostly an having been done 'unlawfully and maliciously', but sometimes 'wilfully or maliciously'. It is necessary therefore, if possible, to ascertain what precise meaning is to be attached to these words." - Kenny's Outlines of Criminal Law, 19th ed edited by JWC Turner, p239.

And later in the same work, in explanation of the term, "maliciously": -

"Burning a house by negligence is no crime. Even the fact that this negligence occurred in the course of the commission of a felonious act will not suffice to render the consequent burning-down indictable as an arson. For in any statutory definition of a crime, 'malice' must, as we have already seen, be taken, not in its value common-law sense as 'wickedness' in general, but as requiring an actual intention to do the particular kind of harm that in fact was done (or a recklessness as to doing it). Consequently, if a criminal, when engaged in committing some burglary or other felony, negligently sets fire to a house, he usually will not be guilty of arson. He would, however, be so in those rarer cases where the original crime he was engaged in was itself an act of burning, such as he would know to be likely to result in producing an arson; for he had foreseen the possibility.

...

For if a man mischievously tries to burn some chattels inside a house, and sets fire to the house thereby, this is not an arson of the house if (as will, of course, rarely be the case) it appears from the evidence that he neither intended nor foresaw the possibility of the house's catching fire. For it is essential to arson that the incendiary either should have intended the building to take fire, or, at least, should have recognised the probability of its taking fire and have been reckless as to whether or not it did so. The cases emphasise that this test of liability is subjective." (Ibid, paras200-207).

As illustrative of these passages, R v Child [1871] 1 CCR 307; R v Nattrass (1882) 15 Cox 73 (TAC); R v Batstone (1864) 10 Cox 20; and R v Harris (1882) 15 Cox 75 (TAC), are cited.

27 The law as to arson remained so in England in relation to reckless conduct until the Criminal Damage Act 1971 was passed, in response to a Law Commission Report (Law Commission, Report on Offences of Damage to Property, Law Com No 29 of 1970; see Glanville Williams, Textbook of Criminal Law, 2nd ed, p908; Smith and Hogan, Criminal Law, 5th ed, p649). That is to say, under ss2 and 3 of the Malicious Damage Act 1861, unlawfully and maliciously setting fire to a house, stable, office or shop, and a number of other named buildings and structures which would ordinarily come within the scope of our crime of arson was a felony. Reg v Cunningham [1957] 2 QB 396 authoritatively re-stated the law as to the states of mind essential to commission of this and similar crimes in which malice was an ingredient in the following terms:-

"We have considered those cases, and we have also considered, in the light of those cases, the following principle which was propounded by the late Professor CS Kenny in the first edition of his Outlines of Criminal Law published in 1902 and repeated at p186 of the 16th edition edited by Mr J W. Cecil Turner and published in 1952: 'In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured. The same principle [said the Court of Appeal] is repeated by Mr Turner in his 10th edition of Russell on Crime at p1592.

We think that this is an accurate statement of the law. It derives some support from the judgments of Lord Coleridge CJ and Blackburn J in Pembliton's case, LR 2 CCR 119, 122. In our opinion the word 'maliciously' in a Statutory crime postulates foresight of consequence." (Ibid, pp399-400).

The 1971 Act created offences of simple damage to property and dangerous (ie endangering the life of another or being reckless as to whether the life of another would be thereby endangered) damage to property, and provided that an offence committed under either provision by destroying or damaging property by fire should be charged as arson. Therefore, under that Act there is now simple arson and dangerous arson. Later, in Caldwell [1982] UKHL 1; [1981] 1 All ER 961, the House of Lords by a majority held that the statutory definition of recklessness there is to be interpreted more broadly than the traditional concept of sentient recklessness, as per Cunningham' s case, and includes conduct which in fact creates an obvious risk that property will be destroyed or damaged and the actor either gives no thought to the possibility of there being any such risk, or has recognised that there was some risk involved but has nonetheless gone on to do it - see Smith and Hogan, op cit, p634. The state of the law in Tasmania does not require us to consider these refinements.

28 The applicable law for us is that recklessness of the kind described in Cunningham's case is conduct which satisfies in respect of arson the meaning of "wilfully" in s267(3). We are not, of course, troubled with any reference in the Code to the concept of malice, nor with the old law of mens rea. Instead, we have the s13(1) "act", which in this case must be done wilfully to constitute a crime. The point of considering the line of authority in the United Kingdom is that it is consistent with the proposition that the blameworthy intention required by s267(3) is to be regarded as satisfied by recklessly incurring the risk of setting property on fire. This interpretation of "wilfully" in s267(3) is strongly supported by the fact that, as study of the collection of relevant statutory provisions concerning arson in other jurisdictions, cited to us by learned counsel for the appellant, Mr Kable, shows (viz. Victoria, Crimes Act 1958, s197: New South Wales, Crimes Act 1900, ss5, 194, 198; Queensland, Criminal Code, s461, Reg v Lockwood Ex Parte Attorney General [1981] Qd R 209; Canada, Criminal Code, s386(1); New Zealand, Crimes Act 1961, s293(1)), inclusion in those provisions of reckless conduct within the Cunningham description is uniform.

29 The main ground of appeal therefore fails; but for the reasons stated by Wright J, with which I agree, I would allow the appeal and order a re-trial, on the ground related to s81B of the Evidence Act 1910.

30 I have read the discussion by Mr Justice Neasey in his draft reasons in this matter of the meaning of the word "wilfully" in s267(3) of the Code. With respect, subject to one exception, I agree with the views he has expressed. The exception is that I adhere to what I said in The Queen v Hodgson [1985] Tas SR 75 concerning the meaning of the phrase in s267(3) "an act causing injury to property".

31 In relation to the second ground of appeal I agree with the reasons for judgment prepared by Mr Justice Wright.

32 The appeal should be allowed, the conviction quashed and there should be an order for a new trial.

33 The appellant was convicted of one count of arson contrary to the Code, s268. An appeal against conviction came on for hearing before a Bench of three judges. The notice of appeal was then amended by adding a new ground which could only succeed if the appellant established that R v Hodgson [1985] TASSC 40; [1985] Tas R 75 had been wrongly decided. The hearing of the appeal was adjourned for determination by a court constituted by five judges.

34 The amended ground requires a consideration of the doctrine of stare decisis and its application to this court. It is widely accepted that an intermediate appellate court has the power to overrule one of its decisions but the circumstances in which that power will be exercised differs from jurisdiction to jurisdiction.

35 In Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718 the following passage appears at p 729 in the joint judgment of six judges of the Court of Appeal:

"On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarise: (1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam."

36 Subsequently, several unsuccessful attempts were made by the English Court of Appeal to escape these self-imposed fetters. In Gallie v Lee [1969] 2 Ch 17 Lord Denning MR dissented from the other two members of the court when he said at p37:

"We are, of course, bound by the decisions of the House, but I do not think we are bound by prior decisions of our own, or at any rate, not absolutely bound. We are not fettered as it was once thought. It was a self-imposed limitation: and we who imposed it can also remove it. The House of Lords have done it. So why should not we do likewise? We should be just as free, no more and no less, to depart from a prior precedent of our own, as in like case is the House of Lords or a judge of first instance. It is very, very rarely that we will go against a previous decision of our own, but if it is clearly shown to be erroneous, we should be able to put it right."

See also Farrell & Anor v Alexander [1976] QB 345 and the judgment of Lord Russell of Killowen on appeal[1976] UKHL 5; , [1977] AC 59 at pp104-105.

37 Notwithstanding Lord Denning's vigorous dissent, the views expressed by the Court of Appeal in Young's case have prevailed although a move to slightly extend the occasions on which the English Court of Appeal will decline to follow its own decisions can perhaps be discerned in Williams v Fawcett [1985] 1 All ER 787. In that case the court held that it could overrule a prior decision in an exceptional case where there was demonstrable manifest error. The court relied upon a passage in the judgment in Young's case at p729 which left open the category of cases that could be described as having been decided per incuriam and the following passage from the judgment of the court in Morelle Ltd v Wakeling & Anor [1955] EWCA Civ 1; [1955] 2 QB 379 at p406:

"As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene MR, of the rarest occurrence."

38 Sir John Donaldson MR (with whose judgment the other members of the court agreed), having found the existence of manifest error in the judgment sought to be impugned, said at p795:

"I remind myself of the dangers of treating a decision as given per incuriam simply on the ground that it can be demonstrated to be wrong, even if the error is fairly clear on an examination of the authorities."

39 Relaxation of the doctrine of stare decisis as expounded in Young's case was not further advanced by Sir John Donaldson two years later in his judgment in Duke v Reliance Systems Ltd [1987] 2 All ER 858 when he said at p860:

"I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that, had the court had this material it must have reached a contrary decision. That is per incuriam. I do not understand the doctrine to extend to a case where, if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion."

However, it appears that in England a different approach to the doctrine of stare decisis has been taken by the Court of Criminal Appeal. In R v Taylor [1950] 2 KB 368, Lord Goddard CJ delivering the judgment of a court comprising seven justices said, at p371, after referring to the rule of stare decisis in the Court of Appeal in its civil division:

"This court, however, has to deal with questions involving the liberty of the subject, and if it finds, on reconsideration, that, in the opinion of a full court assembled for that purpose, the law has been either misapplied or misunderstood in a decision which it has previously given, and that, on the strength of that decision, an accused person has been sentenced and imprisoned it is the bounden duty of the court to reconsider the early decision with a view to seeing whether that person had been properly convicted. The exceptions which apply in civil cases ought not to be the only ones applied in such a case as the present and in this particular instance the full court of seven judges is unanimously of opinion that the decision of Rex v Treanor 27 Crim AR 35 was wrong for a reason which I will indicate in a moment."

40 This proposition was subsequently adopted by the Court of Criminal Appeal in R v Gould [1968] EWCA Crim 1; [1968] 1 All ER 849 where Lord Diplock said at p851:

"In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If on due consideration we were to be of opinion that the law had been either misapplied or misunderstood in an earlier decision of this court, or its predecessor the Court of Criminal Appeal, we should be entitled to depart from the view as to the law expressed in the earlier decision notwithstanding that the case could not be brought within any of the exceptions laid down in Young v Bristol Aeroplane Co Ltd (supra) as justifying the Court of Appeal in refusing to follow one of its own decisions in a civil case."

41 In Bridges v Bridges and Hooper (1945) 45 SR (NSW) 164, the New South Wales Court of Appeal declined to follow Young's case. Davidson J said at p172:

"I recognise that a considered judgment of the Full Court should not be lightly disregarded; but there is no principle in force in New South Wales which constrains us, as the Court of Appeal has recently held itself to be constrained in England (Young v Bristol Aeroplane Co Ltd) to follow an earlier decision if we are satisfied that it is wrong; and I do not think that we should tie our hands by the introduction of such a principle."

42 That approach has been subsequently endorsed by the New South Wales Court of Appeal on several occasions. See for example Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at p171; Connor v Sankey & Ors, Whitlam v Sankey & Ors [1976] 2 NSWLR 570 at pp588, 618, 629. In Bennett and Wood Ltd & Ors v Council of the City of Orange; Board of Fire Commissioners (1967) 67 SR (NSW) 426 Walsh JA said at p432:

"Unless it appears to me that the decision was manifestly wrong, I am of opinion that I should follow it without making an independent examination of its correctness."

Wallace and Holmes JJA disagreed and declined to be constrained by the need for proof that an earlier decision was manifestly or demonstrably wrong.

43 In R v Johns [1978] 2 NSWLR 259 Street CJ affirmed the correctness of the earlier New South Wales decisions, cited the dissenting judgment of Lord Denning MR in Gallie v Lee (supra) and said at p262:

"The approach taken by Jordan CJ in Bridges v Bridges is that which is appropriate to be applied in the Court of Criminal Appeal. This approach is in line with the conclusion of the majority in Bennett and Wood Ltd v Orange City Council that an earlier decision should not be allowed to stand where justice seems to require otherwise. It is in line, also, with the conclusion reached by Lord Denning in Gallie v Lee and with the conclusion which Salmon LJ would have liked to have been free to reach in the same case. It should, perhaps, be added that the freedom of the Court of Criminal Appeal to regard itself as not bound by its earlier decisions was assumed, without question, in two comparatively recent decisions: R v Sperotto (1970) 71 SR (NSW) 334 and R v Rawcliffe [1977] 1 NSWLR 219."

44 It should be noted however that the New South Wales Appellate Courts have adopted a policy that the court will not review its own considered decisions in the absence of cogent reasons and without leave. A case for review must be made out. See Neptune Oil Co Pty Ltd v Fowler (1963) 80 WN (NSW) 971 at p975; Richardson v Mayer (1964) 64 SR (NSW) 502 at p 507; Rankin & Ors v Baldi & Ors [1985] 1 NSWLR 274.

45 In South Australia the conservative approach adopted by Walsh JA in Bennett & Wood Ltd was taken by Hogarth J in R v White [1967] SASR 184 at p201. His Honour maintained that approach in R v Barnes (1979) 20 SASR 1 and drew no distinction between the function of the Full Court and the Court of Criminal Appeal on this question. In the same case at p9, Wells J considered that the Court of Criminal Appeal must be satisfied that its earlier decision was "plainly wrong" before it could refuse to follow that decision. In Jenerce Pty Ltd & Ors v Pope (1971) 1 SASR 204 Bray CJ said that it was unnecessary to consider the question in the circumstances of the case but Mitchell J said at p214:

"I would respectfully adopt the approach of Walsh JA. (as he then was) in Bennett & Wood Ltd v Orange City Council that 'unless it appears to me that that decision was manifestly wrong, I am of opinion that I should follow it without making an independent examination of its correctness'."

46 A more flexible approach has apparently long been adopted by the Full Court of Victoria by reserving to itself the right to reconsider prior decisions in what are seen to be appropriate cases. See Forster v Forster [1907] VicLawRp 31; [1907] VLR 159; McKinnon v Gange [1910] VicLawRp 7; [1910] VLR 32 at p35.

47 The Queensland Court of Criminal Appeal comprising Stanley, Mack and Stable JJ considered the application of the stare decisis rule in R v Gassman [1961] QR 381. Stanley J said at p 382:

"I am not prepared to hold at this stage that this court cannot reverse a previous decision of its own interpreting the Criminal Code, when satisfied that such decision is clearly wrong, but such a reversal would clearly be a step of a most unusual kind and not to be made lightly by any three judges. I think this court should only over-rule its previous decisions after proper consideration by a Full Bench of a majority of the judges. If we did otherwise, it is obvious that much confusion might be caused from time to time in the administration of the law, depending on who was the trial judge and who happened to be the judges constituting the Court of Criminal Appeal."

48 However, in a later case, R v Johnson [1964] QSR 1 his Honour said at p14:

"I have already intimated my view that this court should not set up a rigid principle that it is bound by its earlier decisions. This principle is not adopted by the English Court of Criminal Appeal. ... The reversal of a prior decision by a specially constituted court of five or more judges on a matter of exceptional gravity is no cause for alarm."

49 In Gassman Stable J said at p387 that, assuming the court had a power to overrule an earlier decision, it should only do so "upon clear satisfaction that the earlier decision was wrong". Mack J preferred to confine the occasions on which an earlier decision should be overruled to those enunciated by the English Court of Appeal in Young v Bristol Aeroplane Co Ltd (supra). His Honour referred to R v Taylor (supra) but declined to follow it noting that it had not been followed in England (cf R v Gould (supra)) and drew attention to the provisions of the Supreme Court Act 1921 (Qld), s5.

50 In R v Lockwood [1981] QR 209 a specially constituted court of five judges overruled a decision of the same court constituted by three judges. No discussion of the doctrine of stare decisis appears in the judgments. However it is significant that the provisions of the Queensland Supreme Court Act, s5 differ from the Code, s400. The former provides that the Court of Criminal Appeal shall consist of three judges unless, in a particular case, the Governor in Council on the recommendation of the Chief Justice otherwise orders by Order in Council. The latter provides that the Court of Criminal Appeal is duly constituted if it consists of three or more judges. Subsection (1) also makes provision that, in the circumstances set out in the subsection, it may be duly constituted by only two judges.

51 In Bradley v Armstrong [1981] FCA 177; (1981) 39 ALR 118 the Full Court of the Federal Court was of the opinion that it ought not overrule a prior decision in the absence of exceptional circumstances. The Full Court of the Family Court of Australia in In the Marriage of Mullane 43 FLR 201 held that the court should follow its own decisions unless they were shown to be manifestly wrong or contrary to a decision of another court which the Full Court is bound to follow.

52 From the foregoing brief survey of decisions in some other jurisdictions there appears common acceptance of the proposition that maintenance of the doctrine of stare decisis is essential to the orderly development of the common law but that an intermediate appellate court has the power, exercisable only in compelling circumstances, to overrule a prior decision. There is a considerable divergence of opinion with respect to what constitutes such compelling circumstances.

53 The question was considered by this court in Arnol & Ors v R [1981] Tas SR 157. The learned Chief Justice held that this court had power to overrule a prior decision and expounded the rationale for the maintenance of the doctrine of stare decisis. He said at p164:

"I do not propose attempting to exhaustively state the circumstances under which it might be appropriate for this court to review its own decisions, but I think that the court would be justified in doing so when the earlier decision is shown to have been arrived at without regard to an applicable statutory provision or binding authority, when the chain of reasoning employed in the earlier decision contains a manifest - as opposed to a merely arguable - contradiction or flaw which vitiates the conclusion reached, or when in the meantime legislation, case law, or other material circumstances have undergone changes which have had the effect of altering the basis upon which the earlier decision was reached. However, it would be wrong for this court to review an earlier authority merely because it preferred a different view of the law than that which was taken in the earlier case."

54 In my respectful opinion the foregoing passage correctly sets out the law in the State. It is consistent with the maintenance of the rule of stare decisis and consistent with the preponderance of judicial opinion in the other jurisdictions I have referred to.

55 In my opinion it is desirable that this court adopt a rule of practice that leave is necessary before the Court of Criminal Appeal or the Full Court will entertain an argument that an earlier decision of the court should be overruled. The application should be on notice specifying the grounds relied upon and heard by a bench of three judges. If leave is granted the appeal should be referred to a bench of five judges for determination on the merits.

56 With respect to the present appeal no ground has been made out for this court overruling its decision in R v Hodgson. It was not submitted that the decision was reached per incuriam or that there have been material changes to the law since Hodgson which vitiate the basis upon which the majority reached its decision. There is nothing to suggest that the ratio decidendi is manifestly wrong, or that its application has or is likely to cause injustice. Counsel for the appellant relied upon He Kaw Teh v The Queen [1985] HCA 43; (1984) 157 CLR 523 and other decisions of the High Court handed down since Hodgson but there is nothing in any of those decisions to impugn the correctness of the majority decision in Hodgson.

58 With respect to the second ground of appeal relating to the learned trial judge's failure to admit the appellant's statement of the 22 September 1987 into evidence I have had the advantage of reading in draft the reasons for judgment of Wright J I agree with those reasons and his conclusion that, on this ground, the appeal should be allowed, the conviction quashed and a new trial ordered.

59 The first ground of appeal seeks to challenge the correctness of the decision of this Court in The Queen v Hodgson [1985] Tas SR 75.

60 Whilst it is plain that the Court of Criminal Appeal in Tasmania has no existing rule of practice of the kind recognised by the High Court in Evda Nominees Pty Ltd v Victoria [1984] HCA 18; (1984) 154 CLR 311 requiring the leave of the Court to challenge a previous case, there is nonetheless a threshold problem that the appellant must overcome before this Court will embark on a re-examination of one of its earlier decisions. Merely because the Court is now constituted by five judges rather than the normal three, does not mean that its decision will have any greater authority in a legal sense than a Bench comprised of three judges but sometimes the convening of a five member court has been seen, in itself, as a sufficient reason for reconsidering an earlier decision (eg R v Lockwood Ex Parte Attorney General [1981] Qd R 209 at 209 per Lucas ACJ and Sola Optical Aust Pty Ltd v Mills (1987) 46 SASR 364 at 377 per White J and R v Bonner [1957] VicRp 33; [1957] VR 227). However this is a view which I think is hard to justify. From a practical point of view, of course, the difficulties inherent in a bench of three judges overruling a decision of a court similarly constituted which were adverted to in Reg v Gassman [1961] Qd R 381 by Stanley J at 382 and Mack J at 383, would be avoided by a decision of the Court in which a majority of the judges in the State have participated. But it seems to me that there is a serious matter of principle which prevents any court, however constituted, from embarking on a review of an earlier case without compelling reason.

61 The central problem in adopting this course arises from the application of the principle of stare decisis. Whilst this Court is not absolutely bound by previous decisions of the same Court (see Arnol v The Queen [1981] Tas SR 157 at 161 per Green CJ), it is so bound unless and until an earlier decision is specifically overruled, either directly or as a result of necessary implication by a later decision. As Green CJ said in Arnol v The Queen (supra) at p162:-

"The real question is under what circumstances should the power be exercised? There are two strong and obvious reasons why its exercise should be regarded as exceptional. First, the doctrine of precedent is entrenched as a fundamental characteristic of our legal system. Secondly, the need for certainty and predictability in a legal system is not derived merely from considerations of convenience. The raison d'etre of any value system, including in particular a legal system, is that it is capable of guiding human conduct. A legal system which contains rules which cannot be ascertained because they are frequently changed, or which is such that rational predictions cannot be made as to the law which a court will apply to a particular situation, loses that capacity and thus destroys its foundations. But nevertheless, although they might be exceptional, there are occasions when other considerations must prevail."

62 In the absence of a special reason of the kind mentioned in the following paragraph which of itself may justify a re-examination of an earlier case, the burden that an appellant assumes in attacking a previous decision is to demonstrate that it is plainly or manifestly wrong. This, in substance, was the view expressed by Green CJ and Cosgrove J in Arnol v The Queen and it is a view which I respectfully share. It also seems to be the predominant view taken by the judges of appellate courts in other Australian States. See for example Gassman v The Queen (supra); Nguyen v Nguyen (Queensland Full Court (as yet unreported) 241188); The Queen v White [1967] SASR 184; The Queen v Barnes (1978) 20 SASR 1; Reg v Rawcliffe [1977] 1 NSWLR 219 and Flanagan v HC Buckman & Son Pty Ltd [1972] 2 NSWLR 761. It is consistent with the English decisions reviewed by CK Allen Law in the Making, 7th ed, Ch IV and accords, I think, with the provisional opinions in the New Zealand Court of Appeal expressed by Cooke P and McMullin J in Arataki Properties Ltd v Craig [1986] 2 NZLR 294 at 298 and 299 respectively. A similar view has also been taken by Bowen CJ and Foster J in the Federal Court (see Chamberlain v R [1983] FCA 78; (1983) 46 ALR 493 and 498). The High Court of Australia as the ultimate court of appeal in this country understandably adopts a somewhat more flexible approach See Attorney General for New South Wales v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237 at 243 per Dixon J and John v Commissioner of Taxation [1989] HCA 5; (1989) 83 ALR 606.

63 Whilst the categories of cases in which a later court may overrule an earlier decision are not closed, it seems to me that unless the first ground in the present appeal succeeds on the basis that Hodgson's case is shown to be clearly wrong, the present matter falls into none of the previously recognised categories acknowledged by earlier cases as in themselves warranting a review of the law. It has not been suggested that the decision in Hodgson was pronounced per incuriam in that a binding authority of a superior court or a relevant statutory provision was overlooked or ignored. It is not suggested that there are decisions of other Australian appellate courts, or of this Court, with which Hodgson is in conflict. It is not suggested that Hodgson has caused difficulties or injustices in the administration of the criminal law or has given rise to undesirable practices.

64 True it may be that the majority of the court in Hodgson, comprising Nettlefold and Cox JJ, assigned differing reasons for the ultimate conclusion to which they both came. Nonetheless, the decision of the Court is plain and its effect is that the provisions of the Criminal Code require proof by the Crown in a case of arson that the accused either intended to cause damage by fire to property or, being aware of the likelihood of such result, nonetheless in reckless disregard thereof ignited the fire which caused the damage. The consequence of this decision is that the law in Tasmania as to arson is interpreted identically to or very similarly to comparable laws in other States and Territories. Although it was submitted by the appellant that Nettlefold J was not correct when he advanced this as a reason in itself for interpreting "wilful" in the way which he did in Hodgson's case, it is, I think, a powerful consideration for this Court to have in mind when it considers whether or not it will undertake a review of that decision.

65 I turn now to consider whether Hodgson has been shown to be manifestly incorrect. It was suggested by the Crown that, in any event, this case is an inappropriate vehicle for undertaking such an exercise because in the present case the real issue for the jury was the identity of the arsonist and not whether arson had been committed. It is true that this was how the case finally reached the jury, but of course by that time it was plain to all that the trial judge, bound as he was to follow Hodgson, would not be directing the jury in terms which would permit an acquittal if recklessness rather than specific intent to damage property was the sole mental ingredient established by the evidence. I am therefore unable to say that this submission by the Crown is entitled to any weight. If Hodgson were to be overruled and the case goes for retrial it is easy to see that the emphasis by the defence could well shift, at least in part, to the mental element of the alleged crime.

66 Has the appellant shown that there are demonstrable flaws in the logic, methodology or conclusions of the judges forming the majority in Hodgson which so fundamentally affect the decision as to enable this Court to say it was manifestly erroneous? It is legitimate I think in pursuing this enquiry to consider the Crown submission that Cosgrove J who was the dissenting judge used as the basis for his dissent the assumption that as "wilful" was provided as a specific ingredient by s267(3) of the Code this must of necessity add something to the requisite state of mind of the accused which was not provided by s13. The Crown submitted in effect that in making this assumption Cosgrove J fell into error which vitiated his conclusions. Without, I think, needing to reach a firm conclusion on this submission it is sufficient for me to say that it is an argument which prima facie has merit and derives a certain amount of support from the way in which the majority of the High Court approached the construction of the Customs Act 1901 (Cth) s229(1)(i) in Murphy v Farmer (1988) 62 ALR 420 to which counsel for the appellant made reference. In construing the phrase "false or wilfully misleading" as meaning "purposely or deliberately or intentionally untrue or wilfully misleading" (see p424) the High Court has come close to recognizing that, as Lord Simon of Glaisdale said in Farrell v Alexander [1976] UKHL 5; [1977] AC 59 at 87, "a tautology, unlike a contradiction does not necessarily call for any modification of meaning". Consequently it cannot be said that the dissenting judgment in Hodgson is obviously correct. Conversely, having read them with some care, I cannot say that the majority judgments are plainly incorrect, either because of patent flaws in their formation or for the more general reason submitted by Mr Kable that since Hodgson the High Court has adopted a much stricter approach to the construction of penal provisions resulting in criminal liability of the subject. He referred specifically to Murphy v Farmer (supra), He Kaw Teh v R (1984-5) [1985] HCA 43; 157 CLR 523 and Boughey v R [1986] HCA 29; (1986) 161 CLR 10. This latter submission is one which I cannot accept, as it seems to me that all the High Court has been doing in the cases cited, is re-affirming or re-enunciating well entrenched principles. Therefore, without expressing my reasons at length and without foreclosing the possibility that after more detailed and persuasive argument on a subsequent occasion I may be compelled to a contrary view, I think it appropriate to say that, at the present time, I am of the view that the decision in Hodgson was correct and should not be disturbed. It seems to me that whether one follows the Cox J or Nettlefold J path to the final conclusion, it is inevitable, unless arson is a crime of specific (or "ulterior") intent, as that term was used by Lord Simon in DPP v Morgan [1975] UKHL 3; [1976] AC 182 at 216-7 and by some modern writers (see Some Simple Thoughts on Intention [1988] Crim LR 484), that the element of recklessness accompanying the accused's deliberate and allegedly unlawful conduct is sufficient in law to provide the requisite mens rea. In my opinion it is not possible to spell out of the requirement that the accused's act causing injury to property (whether that be the purely physical action produced by a muscular contraction or the physical act plus its consequences) be "wilful", a further requirement that a specific intent must be proved before the prosecution can succeed.

67 I must say I incline to the view that the phrase "an act causing injury to property" suggests that the act contemplated is not the physical act plus its consequences but the physical act alone. I am aided in forming this provisional view (inter alia) by a consideration of the very different ways in which the draughtsman of s267 has expressed himself in subs(1) and subs(3). In the former the familiar formula appropriate to crimes of specific intent is used whereas in subs(3) the word "intent" is completely avoided. I might also add that this view and the view of Cox J in Hodgson appear to derive support from the discussion by Lord Diplock in Miller v R [1982] UKHL 6; [1983] 1 All ER 978 in which his Lordship exposes the various pieces of conduct which may be accompanied by varying states of mind from the commencement to the completion of a "result" crime such as arson any of which pieces of conduct attract criminal liability for that crime if accompanied by the requisite state of mind and if fairly regarded as causative of the proscribed result.

68 However, I am able to resolve this appeal on another ground and do not find it essential to make a firm pronouncement upon this aspect of the case but, before leaving the subject, there are two additional matters which I wish to mention. Firstly, I am of the view that when fundamental questions of liability, either in criminal or civil matters, arise for determination it is a very sound practice to have such questions considered by a court of five judges. So far as I am aware this is the first time that such a course has been taken in Tasmania. Secondly, irrespective of the number of judges constituting the appellate court, it is my opinion that any parties desiring to have an earlier decision of the Full Court or the Court of Criminal Appeal overruled should apply for and be granted leave to advance argument for this purpose before being heard further on the question. I recognise that this proposal may not receive universal support, but it seems to me that there are sound practical reasons for requiring this procedure to be followed. If a rule of this kind is not applied it becomes incumbent upon any court hearing argument on the correctness of an earlier case on a ground essential to its decision, to hear full submissions and itself fully analyse the judgment in question before it can say whether that judgment is plainly erroneous or not. This is not a function which a court should be required to perform on every occasion that counsel sees fit to challenge a precedent of prima facie binding authority. If sound reasons exist for reviewing such a decision counsel should be able to articulate those reasons and demonstrate the need for a review to the court hearing a preliminary application. Since preparing these reasons I have had the advantage of reading the proposals by the Chief Justice as to the appropriate method of dealing with future appeals in which a previous decision of the court is challenged and, as the Chief Justice has already mentioned, I agree with those proposals.

69 I turn now to consider the second ground of appeal which is in the following terms:-

"The learned trial judge erred in law in failing to admit into evidence pursuant to Section 81B of the Evidence Act 1910, the Applicant's written statement of 22nd September 1987."

70 During the course of the appellant's evidence at the trial an attempt was made to introduce into evidence a previous statement which she had made relative to the facts in issue at the trial and tending to establish the existence of those facts. This statement, according to her evidence, had been made within four days of her arrest by police. Also, according to her evidence, the statement was made at the suggestion of her solicitor when she first consulted him. He told her to go home and make a statement "whilst it was still fresh in my mind". She obeyed this direction and prepared the document entirely on her own without the aid or assistance of anyone else. When it was completed she had it witnessed by a Justice of the Peace.

71 The appellant sought to tender this document under the provisions of s81B of the Evidence Act 1910. A voir dire was held in the absence of the jury to examine its admissibility. The appellant then gave the evidence to the trial judge which I have set out in compendious form above. She was cross-examined by Crown counsel and was asked (inter alia) whether during the period between leaving police custody and making the statement she had spoken to other people about the matters which had occurred. She agreed that she had spoken to several people about these events. It was not put to her that in consequence of her doing so the freshness of her recollection of events had been impaired or tarnished. To my mind it would be most surprising if such a consequence should result from the mere circumstance that some or all of the day's events had been retold to others, particularly if, as here, none of them had been participants in the events in question and therefore unlikely to deliberately or inadvertently cloud the speaker's mind with a contradictory recollection. Nonetheless, in the course of ruling on the appellant's application, the learned trial judge said:-

"Well I'm of the opinion that Section 81B does not avail the accused in the circumstances of this case in presenting this document as an exhibit. In my view the crucial aspect of Section 81B is that the Court has to be satisfied that at the time of the preparation of the document, the facts and representations - or the facts rather, about which representations were made were fresh in the memory of the witness, and I'm not satisfied that that is the case in this - in the circumstances of this particular case. I'm not satisfied about that for a number of reasons. One is that a number of days had gone by. Secondly, there has been evidence of discussions with other people. And that the fact that the passage of time, the discussions with other people and the very predicament in which the accused was, all raise the possibility, indeed, it may be categorised as more than a possibility that the representations made on that Tuesday were not truly the products of fresh memory but may have been affected by innocent or conceivably by deliberate reconstruction on her part. I do not regard, in the circumstances, in this case, the evidence as establishing that the representation was made at a time when the facts stated in the document were fresh in her memory. For that reason I rule that Section 81B does not avail her."

72 In Jones v The Queen, 47/88, the Court of Criminal Appeal, in discussing the admissibility of evidence under s81B, said:-

"But the representations should not have been admitted unless the learned trial judge was also satisfied that the representations were 'made at a time when the facts stated in the document were fresh in the memory of the witness'. Facts will only be 'fresh in the memory' if the capacity to recall them remains substantially unaffected by the passage of time or by the occurrence of intervening events. No evidence other than the production of the document itself was led on this question.

...

It was submitted by Crown counsel that 'fresh' in this context was not synonymous with 'recent' or 'new', but was more appropriately to be equated with 'clear'. On this basis, it was argued, a witness could have a fresh memory of an event which had occurred a substantial time previously provided it was of sufficient moment to be etched indelibly within his or her recollection. In our opinion this submission is untenable or, at least, is untenable in respect of any case in which it appears that a significant time has elapsed since the occurrence of the relevant events unless the witness in question is able to positively and affirmatively satisfy the trial judge that notwithstanding the effluxion of time there are special circumstances which enable his or her memory of the events to be characterized as 'fresh'. In our view the primary meaning of 'fresh' in the context of s81B(1)(c)(i) is 'new' or 'recent'. It thus has a plain temporal connotation and prima facie any memory which is derived from events occurring weeks or months before could not normally be characterized as 'fresh'."

73 When one examines the reasons of his Honour the trial judge in light of these principles it becomes clear in my opinion that his rejection of the appellant's document cannot be supported. I have reached this conclusion for the following reasons.

74 Firstly the passage of four days only since the occurrence of the relevant events could not reasonably have been regarded as a factor entailing any real possibility that the appellant's memory of those events had ceased to be fresh simply because of the effluxion of time. They were significant events in her life and in my view would almost certainly have impressed themselves upon her mind. Her consequent distress would not in my opinion be likely to confuse or dull her ability to recall those events to any substantial extent; it may even be argued that this emotion would have served rather to enhance the clarity of her memory. Secondly, as I have already said, mere repetition of those events is not per se a sound basis for concluding that there was any real prospect that such a process would corrupt the appellant's memory. Thirdly, it is, of course, irrelevant for present purposes to consider whether or not the appellant may have dishonestly misrepresented her true memory in the subject document, yet it is plain that his Honour strayed into this area by referring as he did to possible "deliberate reconstruction". In my opinion the prospect of deliberate falsehood by the maker of the document was an issue for the jury only and should not have intruded into his Honour's consideration of its admissibility. Fourthly, his Honour made no adverse finding on the appellant's credibility in relation to the evidence which she gave on the voir dire. Indeed he appears to have accepted and acted upon that evidence.

75 It seems to me that although the appellant had the obligation to satisfy his Honour as to the freshness of her memory at the time she compiled the subject document, there was nothing in the evidence which she gave on the voir dire (and hers was the only evidence) which could reasonably have suggested that her memory was other than fresh. As I have said it was not put to the appellant that her recollection of events had become corrupted by conversations she had had with other people.

76 By relying on this possibility as a foundation for failing to be satisfied that her memory was fresh at the relevant time, I think that his Honour was in error. On the material before him he should have been satisfied that the document was admissible. It seems to me that this is a case where his Honour having failed to impugn the appellant's credit and having before him uncontroverted facts, this Court is at no disadvantage in assessing the evidence and drawing its own inferences therefrom (see Voulis v Kozary [1975] HCA 44; (1975) 7 ALR 126). Accordingly, I have little hesitation in saying that the only proper finding on the evidence was that the document came into existence at a time when the matters as to which representations were made therein were fresh in the memory of the appellant.

77 Many of the arguments raised by the Crown in support of his Honour's ruling were related to the weight of this evidence rather than its admissibility. Weight of course is for the jury. In my view the rejection of this document was an error which vitiated the trial and resulted therefore in a miscarriage of justice. In my opinion where evidence of this kind has been excluded from the jury's consideration there is no room for the application of the proviso. The appeal should be allowed and there should be a retrial.

Gardenal-Williams v R [1989] TASSC 29

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Gardenal-Williams v R [1989] TASSC 29 (9 June 1989)

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Legislation Cited (1)

Cases Cited (21)