Pollitt v The Queen

[1992] HCA 35

High Court of Australia|1992-07-01|Before: McHugh JJ, Gaudron JJ

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Court

High Court of Australia

Decision date

1992-07-01

Before

McHugh JJ, Gaudron JJ

Source

Original judgment source is linked above.

Judgment (195 paragraphs)

[1]

The application of the approach which I have just stated presents a problem in the present case by reason of the difference in the testimony given by Mr. and Mrs. Berry with respect to the time when Allen made his statement identifying the applicant as the other party to the telephone conversation. According to the evidence of Mrs. Berry, the statement by Allen that he had been speaking to "Ray" was made "when he got off the phone". On the other hand, Mr. Berry was unable to recall observing Allen on the telephone on that occasion. Mr. Berry's evidence on this point is not necessarily inconsistent with that of his wife because he may not have been in the room when the telephone conversation took place. However, Mr. Berry did give evidence that several days later Allen said: "Ray got the wrong one and wants to be paid for it." Mrs. Berry did not give evidence of such a statement having been made, apart from that made immediately after the telephone call. It is possible that Mr. and Mrs. Berry were deposing to the one statement, not two separate statements, and that they gave conflicting versions of when that statement was made. But the better view of the evidence is that the statements deposed to by Mr. and Mrs. Berry were separate statements made on two different occasions.

[2]

If conflicting versions were given of one statement, they would have given rise to an issue of fact for determination by the jury. If Mrs. Berry's testimony were to be accepted, then the jury were entitled to receive her evidence of Allen's statement as evidence that the applicant was the other party to the telephone conversation and, thus, as evidence of his being a party to the agreement with Allen alleged by the Crown. If, however, the jury were to accept Mr. Berry's evidence, they would not be entitled to act upon the statement. On this hypothesis, the trial judge should have directed the jury accordingly but did not do so. However, as in my view there was no necessary inconsistency between the accounts given by Mr. and Mrs. Berry, this hypothesis may be discarded.

[15]

any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connexion with other facts proves or renders probable the past, present, or future existence or non-existence of the other. Evidence of an out-of-court statement may tend to establish a fact to be proved either because that fact is asserted by the maker of the statement and the maker of the statement is to be believed to have made the statement truthfully - in which case the evidence is hearsay - or because the making of the statement is itself the fact to be proved or, when taken together with other facts established by evidence or common experience, tends to establish the fact to be proved - in which case the evidence is original evidence. The cogency of hearsay evidence depends on the credit to be attributed to the person making the statement in the circumstances in which it was made and on the credit of the witness who relates it in court. The cogency of original evidence depends solely on the credit of the witness who relates it in court. The distinction between hearsay and original evidence was stated by Lord Wilberforce in Ratten v. The Queen [15] in these terms: The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on "testimonially," i.e., as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their Lordships will restate what was said in the judgment of the Board in Subramaniam v. Public Prosecutor [16] : "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." 1. In Reg. v. Kearley, [1992] 2 A.C. 228, at pp. 263-264. 2. 12th ed. (1936), p. 4. 3. [1972] A.C. 378, at p. 387. 4. [1956] 1 W.L.R. 965, at p. 970.

[26]

A contrary view of the evidence of calls was formed by a majority of the House of Lords in Reg. v. Kearley. In that case, callers had offered to buy drugs from the appellant, identifying him by his nickname "Chippie". The calls were made in a period of several hours after the police had conducted a search for drugs in the appellant's house. The reasoning of the majority (Lord Bridge, Lord Ackner and Lord Oliver) contained the following steps: (1) the mere act of calling was meaningless and irrelevant apart from the significance attaching to the words used by the caller; (2) the words used by a caller contained or might be thought to have contained an implied assertion that the appellant was a supplier of drugs; (3) implied assertions in out-of-court statements offend the rule against hearsay; (4) though the words used by a caller showed the caller's state of mind, that state of mind was irrelevant to any fact in issue; (5) the inadmissibility of evidence of a single call is unaffected by proof that there were multiple calls to the same effect. Lord Griffiths, in dissent, regarded proof that the customers believed that they could obtain drugs from the appellant as founding an inference "that the appellant had established a market as a drug dealer by supplying or offering to supply drugs and was thus attracting customers" [27] . The fact that there were other possible explanations meant that it was for the jury to decide which inference they chose to draw. Lord Browne-Wilkinson, also in dissent, regarded evidence of the calls as tending to prove that there was a market for drugs that the appellant might satisfy and that that fact was relevant to the occupant's purpose in having possession of the drugs [28] . The points of departure between the majority in Kearley and the minority in that case and between that majority and the Australian and New Zealand cases earlier cited are to be found in the differing opinions as to the relevance of the fact that callers had sought to buy drugs or place bets to the question of the nature of the activity being carried on by the person charged - unless the statements were treated as hearsay assertions by the callers of the nature of that activity and, on that account, inadmissible. Although the question of admissibility in each case was a question of law, the answer to the question turned on the court's appreciation of the probative effect of the making of the calls, not of the truth of their content. Subject to one reservation, there was no divergence of opinion as to the inadmissibility of the contents of those statements to prove the truth of what the callers had impliedly asserted. The reservation relates to the belief of a caller that a particular activity was being carried on and the use of that belief - as distinct from the making of the statement which conveyed the belief - to found the relevant inference.

[39]

Their Honours' insistence on a natural connexion between the statement and the event was followed by Dixon J. in Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle [37] . His Honour noted the view then current among English lawyers that res gestae evidence was receivable only as original evidence and, on that account, was admissible "only as one of the parts or details of a transaction not complete when the statements were uttered and as supplying no proof of antecedent facts" [38] . The American view, on the other hand, treated the evidence as an exception to the hearsay rule "on the ground that a guarantee of their truth is to be found in their spontaneity, in the lack of "time to devise or contrive" and in the instinctive character of utterances made under the influence of excitement" [38] . The American view has now prevailed. In Ratten , Lord Wilberforce recognized the admissibility of hearsay in statements admitted under the res gestae exception when he rejected as a test of admissibility "the uncertain one whether the making of the statement was in some sense part of the event or transaction" [39] . After review of authorities (including the Australian cases), his Lordship said [40] : These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused. Where the statement was made after the event (presumably his Lordship meant at a time approximately but not exactly contemporaneous with the event) [41] : it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. In Vocisano v. Vocisano [42] Barwick C.J., speaking with the concurrence of the other members of the Court, reserved final consideration of the effect to be given to Ratten . His Honour added: A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable: but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility. 1. (1913) 17 C.L.R. 570, at p. 597. 2. (1940) 64 C.L.R. 514, at p. 533. 3. ibid., at p. 531. 4. ibid., at p. 531. 5. [1972] A.C., at p. 389. 6. ibid., at p. 391. 7. [1972] A.C., at p. 389. 8. (1974) 130 C.L.R. 267, at p. 273.

[41]

An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten [44] ; Reg. v. Andrews [45] ; see also Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle [46] . Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v. Vocisano [47] . In Walton evidence that, in answer to a telephone call, a child had said "Hello, daddy" was held inadmissible to prove the identity of the caller [48] . The statement was probative of the caller's identity only if credit were given to the child's implied assertion that the caller was, in fact, "daddy". The Chief Justice's dissenting view that the statement was admissible though it contained hearsay was based on his Honour's appreciation of "the extreme unlikelihood of concoction on the part of the child" [49] . His Honour's approach was not expressed to be limited by the condition of approximate if not exact contemporaneity with the res gestae, but emphasis was placed on spontaneity as a guarantee of non-concoction. In my respectful opinion, it is not desirable to subsume the res gestae principle under a general principle which would admit hearsay evidence when a trial judge believes that concoction was extremely unlikely because the hearsay statement was uttered with apparent spontaneity. The conditions stated in Ratten and in the joint judgment in Walton and substantially confirmed in Vocisano should continue to govern the admissibility of hearsay evidence under the res gestae exception. Deane J. in Walton also favoured a relaxation of the common law rule "where the circumstances are such that its inflexible application would confound justice or common sense or produce the consequence that the law was unattuned to the circumstances of the society which it exists to serve" [50] . His Honour thought but did not decide that, at least in some circumstances, statements made in the course of a telephone conversation by one party might be admissible to establish the identity of the other. The introduction of a telephone call exception to the hearsay rule has not been pursued thus far. For the purposes of this case, it is sufficient to observe that Walton stands as a recent decision of this Court affirming, at least by a majority, the conditions of admissibility of res gestae evidence stated by Lord Wilberforce in Ratten , namely, approximate if not exact contemporaneity with the res gestae and an assurance of non-concoction arising from the spontaneity of the statement or the involvement of the maker in the events of the res gestae. 1. (1989) 166 C.L.R., at p. 304. 2. [1972] A.C., at pp. 389-390. 3. [1987] A.C. 281, at pp. 300-301. 4. (1940) 64 C.L.R., at p. 531. 5. (1974) 130 C.L.R., at p. 273. 6. (1989) 166 C.L.R., at pp. 306, 309. 7. ibid., at p. 293. 8. ibid., at p. 308.

[45]

The words spoken by Allen in the telephone call on the morning after the murder might be seen, in the circumstances, as a statement by Allen implying that the other party to the conversation had made a contract with him, that the other party had failed to perform the contract properly and that final payment had been deferred until the contract was fully performed. If that were the only way in which evidence of the conversation could be used, it would have been inadmissible as hearsay. There is no evidence that Pollitt, if he were the caller, admitted the truth of the grounds of Allen's remonstrance. But Allen's statement to the telephone caller that the caller would "get the rest of the money when you do the job properly" was itself a promise by Allen to pay the caller. From the making of that promise and from the fact that Allen had remonstrated with the caller, an inference could be drawn that the caller had undertaken to perform some service for Allen and had not then performed it. The evidence was therefore admissible as original evidence if the fact that the caller had undertaken to perform some service for Allen and had not then performed it (the fact to be proved) was relevant to a fact in issue. When the fact of the telephone call containing a remonstrance and a promise is coupled with the evidence of Jones that Pollitt rang Allen that morning after he, Pollitt, found out that he had shot the wrong victim, there is a foundation for an inference that the conversation overheard by Mrs. Berry was a conversation with Pollitt. If that inference were drawn, Allen's remonstrating with Pollitt about his mistaken attempt to perform the contract and Allen's promise to pay on proper performance were relevant to found a further inference that a contract for the murder of Williams existed and had not been performed, though the conversation could not be used (for want of any admission on Pollitt's part) to prove the shooting of Simpson by mistake for Williams. Evidence of the telephone conversation was therefore admissible as original evidence tending, in conjunction with other evidence, to prove the contract.

[53]

The primary warning given by the trial judge in relation to Denning's evidence was along the lines of a traditional corroboration warning. The jury was directed to "look to see if there [was] independent evidence" which corroborated the evidence of Denning and to look for "evidence from some other acceptable source which implicates the accused in the crime". In my view, such a corroboration warning is not really appropriate to deal with the potential unreliability of the evidence of a prison informer about an oral confessional statement allegedly made by a fellow prisoner. Where a prison informer supplies information after encouragement by the authorities, the likelihood is that there will have already existed some evidentiary material which was known to the authorities and which connected the accused with the alleged offence. Thus, in the present case, both Denning's evidence and Pollitt's unsworn statement indicate that Denning knew that the police had other incriminating evidence against Pollitt at the time when Denning first provided information to the police. In such circumstances, a warning to the effect that it is dangerous to rely on a prison informer's evidence of an alleged oral confessional statement unless that evidence is corroborated by other evidence connecting or tending to connect the accused with the offence charged really serves little useful purpose. Indeed, such a warning could conceivably have the unintended effect of conveying to the jury a suggestion that, once they find some corroboration, it is safe to rely upon such evidence. If a corroboration warning is to be of real use in such a context, it must be in terms which direct the need for corroboration towards the reliability of the particular evidence, that is to say, material which corroborates the actual making of the oral confessional statement. An example of that type of corroboration is evidence establishing both that disputed material in the alleged oral confessional statement is accurate and that that material would not have been known to the witness if the alleged confessional statement had not been made. The usefulness of even that kind of corroboration will, however, depend very much on the circumstances. If, for example, the prison informer has provided information to the police about alleged confessional statements made by a number of prisoners in relation to a number of different alleged offences, the possibility that he may have derived the corroborating information from police sources cannot be ignored.

[54]

It would be unwise to seek to formulate in the abstract the contents of an appropriate warning for every case where the prosecution places significant reliance upon the evidence of a prison informer. Such a warning is most likely to be understood by a jury and to be effective if it is moulded in the words of the trial judge to fit the circumstances of the particular case. The most that should be said is that there will inevitably be cases where the minimum necessary warning will be in unqualified terms which draw attention to the fact that the evidence is of its nature potentially unreliable, which stress the need for very careful scrutiny of it and which warn that it would be dangerous to base a conviction upon it. If the prosecution evidence had stood alone, the present would have been such a case. It is true that Denning's evidence contained details of matters relating to the killing which could well have been provided to him by Pollitt in the course of a confessional statement. It is also true that there was other evidence corroborating Denning's evidence in the sense that it connected Pollitt with the offences with which he was charged. Nonetheless, it appears to me that the overall prosecution evidence did not serve to reduce the inherent unreliability of Denning's testimony as that of a police informer seeking personal advantage by providing information to the authorities about an extraordinarily large number of confessional statements allegedly made by fellow prisoners. To the contrary, that inherent unreliability was underlined by Denning's insistence that he was innocent of the crime for which he had been serving a life sentence when he commenced to provide information to the police. It was also underlined by the contrast between Denning's evidence at the trial and his initial statement to the police which had, apparently, been tape-recorded. In his evidence at the trial, Denning provided an allegedly "nearly word perfect" account of a quite detailed confessional statement which he said had been made to him by Pollitt in Goulburn gaol in 1988. In the course of that statement, Pollitt allegedly expressly admitted that he had killed "the wrong bloke" while acting under an arrangement between himself and Allen that he would kill Williams. In contrast, Denning's initial statement to the police about the killing was as follows:

[65]

In the circumstances of the present case, the admissibility of what was said by Allen in the course of the telephone conversation ultimately depended upon whether the other party to the conversation was Pollitt. Evidence of comments made by Allen to Pollitt, in the course of a telephone call made to him by Pollitt, to the effect that Pollitt had already received part payment and that "the job" had not been done "properly" would be admissible for the reason that it could, in the absence of any indication of dissent on the part of Pollitt, base a finding that Pollitt had impliedly admitted those matters. Alternatively, evidence of the making of the telephone call by Pollitt and of what Allen said in the course of it would be admissible for the reason that the telephone call would be a step in the furtherance of the alleged common purpose to kill Williams which had miscarried and resulted in the killing of Simpson. On the other hand, if the person at the other end of the telephone was not Pollitt, Mrs. Berry's evidence of what Allen had said in the telephone conversation would be inadmissible against Pollitt. In a context where the evidence suggested that Allen had been involved in numerous other criminal dealings, a statement made to some person other than Pollitt that that other person would get "the rest of the money" when he had "do[ne] the job properly" could scarcely be seen as admissible on the ground that it would have been made in furtherance of the common criminal purpose which the Crown alleged existed between Allen and Pollitt. Putting to one side the furtherance of such a criminal purpose, evidence of what Allen said on the telephone to a person other than Pollitt would be inadmissible against Pollitt for the reasons given in relation to Mr. Berry's evidence about Allen's statements to him: except to the extent that it tended to establish Allen's beliefs, it would be hearsay; to the extent that it established Allen's beliefs, it would be inadmissible for the reason that what Allen believed was not a material fact in the trial of Pollitt.

[71]

In the times when the hearsay rule was in the course of being developed by the courts, almost all direct communications between persons were made either face to face, with the result that a witness could ordinarily see and hear both parties, or by writing, with the result that the written communication would itself commonly be preserved. These days, much of the private and commercial communications (including, presumably, criminal communications) between persons are by way of the telephone. The standards of our society preclude the legal use of interception devices in other than exceptional circumstances. Consequently, third party evidence of what is said in telephone conversations will ordinarily be subject to the restriction that a witness will have heard but one side of the conversation. In such a case, however, the identity of the other party to the conversation may be made manifest by what is said by the party whose side of the conversation can be heard. Strictly speaking, the comments of that party are hearsay to the extent to which they expressly or impliedly identify the other party. Even where evidence is given by a person who was actually a party to a telephone conversation, there will often necessarily be an element of hearsay in the identification of the other party. Thus, a person who receives a telephone call in relation to a commercial transaction from a person who identifies herself as AB may well be unable independently to identify AB's voice. It would, in my view, plainly be contrary to both common sense and the interests of justice if, in circumstances where there is nothing at all to suggest impersonation, the evidence of the caller's statement that it was AB on the telephone was inadmissible against AB or her principal as evidence prima facie establishing the identity of the caller for the reason that, until it was established that the caller was in fact AB, the statement to that effect was hearsay. Evidence of identification in such a telephone conversation is different from the case where a stranger comes to the door and asserts that she is AB. In the latter case, the direct observation of the other party to (or a witness of) the conversation enables subsequent physical identification to an extent that is unavailable in a case where all that has been heard is an unfamiliar voice on a telephone.

[72]

Once the view is taken that the hearsay rule should not be treated as being incapable of adaptation by the courts in circumstances where its inflexible application would confound justice or common sense, the conclusion seems to me to be inevitable that the rule must be adjusted to the extent necessary to permit the adoption of a sensible approach to an apparently spontaneous and reliable contemporaneous statement of one party to a telephone conversation identifying the other party to the conversation. In my view, the appropriate modification of the hearsay rule which should be recognized is that, where the circumstances do not on their face give rise to a significant possibility of fabrication or impersonation, a witness may give evidence that the party to a telephone conversation who was in his or her presence identified the person at the other end of the line by a statement made immediately before, in the course of, or immediately after, the conversation. Such evidence identifying the other party to the conversation will, of course, only be admissible if the identity of that person has the effect that evidence of the telephone conversation is admissible in the relevant proceedings against the party against whom it is tendered. So long as it is made immediately before, in the course of, or immediately after, the relevant telephone conversation, such a statement is likely to be spontaneous and reliable. Ordinarily, the other party to the conversation will be either the party to the litigation against whom such evidence is tendered or the agent of that party with the consequence that that party will be able to lead evidence disputing the evidence of identification if it is fabricated or the result of impersonation. A corresponding exception should apply in respect of the other category of case to which reference has been made, namely, where the witness was an actual party to the telephone conversation and the other party identified herself or himself expressly or by implication in circumstances which do not, on their face, give rise to a significant possibility of impersonation.

[75]

I have given careful consideration to the question whether any possibility of a resulting miscarriage of justice in the present case was precluded by the trial judge's directions to the jury about the very limited use which they were entitled to make of the relevant evidence of Mr. and Mrs. Berry. On balance, it appears to me that his Honour's directions did not have that effect. His Honour directed the jury that the statements made by Allen were "not evidence of the facts asserted by Allen" and were "not evidence against the accused man". The statements were, his Honour said, "admissible to establish Allen's state of mind at the time he made the statements and to demonstrate, if you accept the truth of them, that he was a party to the agreement to kill Williams". Those statements could, his Honour said, "only be used as establishing Allen's state of mind when he said them and to demonstrate, if you accept them, that he, Allen, was party to the agreement to kill Williams". It is difficult to be confident about how the jury would have interpreted those directions, particularly the direction that evidence which had been admitted on the trial of Pollitt was "not evidence against the accused man". It seems to me, however, to be likely that, in a context where it was common ground that Allen and the person who killed Simpson had been parties to an arrangement to kill Williams, a use of the evidence of Mr. and Mrs. Berry to establish what Allen believed (including, presumably, a belief that the other party to the arrangement with him was Pollitt) could have been just as damaging as the direct use of that evidence to establish that Pollitt was in fact that other party. It is true that Mrs. Berry's admissible evidence of what Allen said in the telephone conversation and of Allen's identification of the caller as Pollitt could well, in the context of all the evidence, have been accepted and interpreted by the jury as establishing that Allen and Pollitt had had a conversation based on a common understanding that Pollitt had killed Simpson by mistake. The inadmissible evidence of Mrs. and Mr. Berry about what Allen had said was, however, much clearer about Pollitt's involvement in the killing and, if accepted, left less room for doubt about Pollitt's guilt. In these circumstances, I am unable to conclude that there is no significant possibility that the wrongful reception of the inadmissible evidence affected the jury's verdict. That being so, I am not satisfied that the wrongful reception of that evidence did not relevantly deprive Pollitt of a fair trial according to law and thereby cause a miscarriage of justice.

[182]

Furthermore, the statement and the contemporaneous identification of the caller as "Ray" were not admissible as exceptions to the hearsay rule. In the light of the widespread use of the telephone as a medium of communication and the inherent general trustworthiness of contemporaneous statements identifying telephone callers, the common law should now recognize, as an exception to the hearsay rule, the admissibility of evidence by a witness that, in his or her presence, a party to a telephone conversation identified the other party to the conversation by a statement made during or immediately before or after the conversation in those cases where the identity of the other party to the conversation is relevant. In Benz [18] , Gaudron J. and I pointed out that "notwithstanding the decision in Myers v. Director of Public Prosecutions [19] , a strong case can be made for developing and applying the common law rules of evidence by reference to the principle that hearsay evidence will be admitted when it appears to have a high degree of reliability". But the exception should be confined to categories of ordinary social and business conversations where there is no real ground for concluding that the identification was fabricated or fictitious. The identification of a party to an ordinary social or business telephone conversation by the other party, when it is made immediately before or after or during such a conversation, is ordinarily a spontaneous and trustworthy identification. Such evidence falls into a category which is sufficiently reliable to be admitted as an exception to the hearsay rule. However, identification made in the course of, or for the purpose of, a criminal venture does not seem to be sufficiently trustworthy to be admitted under this exception. Those engaged, or about to engage, in criminal ventures commonly use false names, particularly first names, to conceal the identity of those to whom they are speaking on the telephone. Moreover, it is not unknown for such persons to invoke the names of people in authority ("That was the Premier" or "That was the boss, he wants ") to give credence to their requests or importunities. Although in particular cases the application of the hearsay rule to telephone conversations made in the course of or for the purpose of a criminal venture may result in trustworthy evidence being excluded, the risk of injustice is sufficiently great to refuse to include such identifications in a new exception to the prohibition against receiving hearsay evidence. In many cases, the overheard part of a telephone conversation made in the course of or for the purpose of a criminal venture will be admissible as a statement made in furtherance of a common criminal purpose [20] . If it is not admissible on that basis, however, it should continue to be governed by the ordinary rules of evidence excluding the reception of hearsay evidence.

[193]

Thus, the jury were clearly directed that the statements were not evidence against the applicant nor even evidence of the facts. Moreover, his Honour's question "Now is that clear?" and his comment "Very well" naturally lead to the conclusion that the members of the jury, by some form of words or conduct, acknowledged that they understood the use which they could make of the evidence. In that context, the question is whether, notwithstanding his Honour's warning and the jury's acknowledgment of their understanding of it, the admission of the evidence is likely to have prejudiced the fair trial of the charge. That question would have to be answered in the affirmative if there was any significant possibility that the jury either used the statements against the applicant or were so affected by them that they could not impartially evaluate the evidence which was admissible against the applicant. Having regard to the strength of his Honour's warnings, the first alternative can be discarded. However, the second alternative is not so easily discarded. The statements contained material which strongly incriminated the applicant. But the potential prejudicial effect of that material must be evaluated in the light of all the evidence in the case. The matters referred to in those statements were substantially in evidence independently of the evidence of the Berrys. Thus, Jones not only described the murder of Simpson by the applicant in detail but testified that the applicant had said that he was doing the killing for Allen and that, if Jones provided assistance, he would receive a large sum of money. Jones also testified that on the day after the killing of Simpson the applicant said that he had shot the wrong person and was worried about what Allen would say. Later that day Jones saw the applicant carrying a cardboard box containing a large sum of money. Jennifer Curillo testified that Allen and the applicant had talked about getting rid of Williams. She also testified that the applicant had telephoned and said: "Tell Dennis the job's done", that on the day following that call she had read a newspaper article concerning a mistaken-identity killing and that some days later she heard Allen tell the applicant in an angry voice that he had got the wrong man.