R v Welsh [1998] VSCA 138

36. The Crown case against Heaney was that she and Piatkov were lesbians and had been lovers; that Piatkov had been murdered by a man named Ed Smith by being drowned in Heaney's bath; and that Heaney had persuaded Smith to drown her former lover and so was guilty of murder as an accessory before the fact. The Crown case against Welsh was that Heaney - as an accessory before - had murdered Piatkov and that Welsh, knowing or believing that she had done so, had done an act with the purpose of (as it may be broadly put) assisting her. (The count in the presentment against Welsh wrongly failed to allege that Heaney had committed a serious indictable offence; no point was made of this either at the trial or before us.) Both accused were convicted. Much of the evidence relied on by the Crown as against Heaney consisted of admissions made by her to civilian witnesses.

39. Welsh wishes to appeal against conviction on the ground that there was no evidence admissible against him that Heaney had murdered the victim. A no case submission made on his behalf and based on this contention was rejected. After this ruling Heaney stood mute and called no evidence, but Welsh gave evidence. Ordinarily, in considering whether the verdict should stand, one would have to ask whether any gap in the Crown case had been filled by the evidence given by the applicant: R. v. Wood [1974] VicRp 16; [1974] V.R. 117. But in the present case the point determined by the trial judge in his ruling, and the charge which, consistently with that ruling, he gave to the jury, was such that, if the ruling was wrong, no assistance can be derived by the Crown from the evidence given by the applicant or any other evidence in the case admissible against the applicant to prove the fact of murder. For the ruling given by the judge, and the consequential charge, concerned and accepted the Crown's submission that if the jury were satisfied by evidence admissible against Heaney that she was guilty of murder they could use that finding to establish the first element of the offence which Welsh was alleged to have committed, namely, the fact of the commission of murder by his co-accused. It would not be possible to save this verdict - if the Crown's primary submission was rejected - by concluding that there was other evidence, admissible against Welsh, to prove the commission of the murder. For the jury were directed to consider the case on the footing that any evidence admissible against Heaney of the commission of the murder could be used by them in considering that issue as against Welsh. In any event, I understood Mr Kayser, who appeared for the Crown, ultimately to concede that the evidence was such that the jury could not find the fact of murder as against Welsh if there was not available to them the evidence of admissions made by Heaney.

42. I should mention that the charge really went beyond telling the jury that evidence of the fact of murder admissible against Heaney could be used by them against Welsh. In fact the judge would, I think, have been regarded by the jury as instructing them that, if they found the murder proved as against Heaney, they should simply treat that issue as resolved against Welsh. But I do not think that in the end anything will be found to turn on this aspect of the charge.

45. I have said that much of the evidence led by the Crown against Heaney to prove the commission of the murder (in which I include her own participation in the crime as an accessory before) was what she had said to certain civilian witnesses. I need not consider whether some of those statements were, on what I will call the conventional approach, admissible against Welsh, for much of this material comprised admissions (as opposed to the making of arrangements) and these admissions, on the conventional approach, were not admissible against him. If the Crown case against Heaney had not included any evidence of admissions - in the wide sense, including admissions by conduct - there would have been no difficulty about telling the jury that they could use against Welsh the evidence against Heaney, for even on the conventional approach all the evidence admissible against Heaney would have been admissible against Welsh also. It is Heaney's oral admissions that present the difficulty.

48. The judge's ruling was in his Honour's view the logical consequence of the decision of the Full Court in R. v. Dawson [1961] VicRp 117; [1961] V.R. 773 (reversed on other grounds: [1961] HCA 74; (1961) 106 C.L.R. 1). In that case Lowe and Smith, JJ., with whom Monahan, J. agreed, said this:

"In support of this ground it was contended, in the first place, that though there was evidence that the felony charged against McKay had been committed, there was no evidence that McKay was the person who committed it. But it appears to be a sufficient answer to this that the Crown called evidence before the jury that McKay, when arraigned upon this presentment, had pleaded guilty to the felony charged against him therein; for it is a rule long established that upon the trial of a person on a charge of having been an accessory to the commission of a felony, proof of the conviction of the alleged principal offender is admissible, and constitutes prima facie evidence that the felony was committed by him: cf. Foster, Crown Law (1809), 3 ed., at p.365; R. v. Smith (1783), 1 Leach 288; R. v. Prosser [1783] EngR 184; (1784), 1 Leach 290 (n); Cook v. Field (1788), 3 Esp. 133, at p.134. Whether there is a wider rule not peculiar to criminal law there is no call in this case to investigate: cf. Davis v. Gell [1924] HCA 56; (1924), 35 C.L.R. 275, at p.296; Helton v. Allan [1940] HCA 20; (1940), 63 C.L.R. 691; Hollington v. Hewthorn, [1943] K.B. 587; Ingram v. Ingram, [1956] 1 All E.R. 785; [1956] P. 390."

In that case Dawson and McKay were presented for trial upon a single presentment, McKay being charged with housebreaking and stealing and Dawson being charged as an accessory after the fact to McKay's felony. McKay pleaded guilty and was remanded for sentence. Dawson pleaded not guilty and was tried. The view is implicit in the joint judgment in Dawson that McKay's plea of guilty, followed by his being remanded for sentence, gave rise to a conviction for the purposes of the rule. The cases dealing with the matter with which we are presently concerned do not always deal in terms with the distinction between verdict and conviction. Although the joint judgment mentions the plea of guilty, the Court appears to regard the plea as relevant only as showing that a conviction was sustained. Presumably the rule recognised in Dawson is that proof of the principal's conviction casts only an evidential burden on the accused, although we need not decide this.

53. I should make three things clear near the outset of my discussion of the questions raised by this case. The first concerns my use of the expression "principal", which can mean different things in different contexts. It is not to the point that Heaney was sought to be made liable, not as an aider and abettor, but as an accessory before the fact. The relevant fact is that she was charged with and convicted of the crime of murder, and she may, and will hereafter, be described as the principal offender vis-à-vis the accessory after the fact. I might mention that it has always been accepted that a person may be an accessory after the fact to the crime committed by an accessory before: Russell on Crime, 12th ed., p.165, who cites 2 Hawkins, Pleas of the Crown, chap. 29, s.1.) The next point is that it has not been at any stage suggested that the circumstance that Heaney's liability arose because she was an accessory before the fact prevented her crime from constituting the principal offence for the purposes of a count under s.325(1). Such a suggestion would have been without foundation. The third point is that the argument on both sides has throughout assumed that the present case is to be determined by reference to authorities and principles or rules dealing with accessories before and after the fact notwithstanding the abolition of the distinction between felony and misdemeanour and the fact that the charge was, as of course it must now be in Victoria, one of assisting an offender, the offence being a statutory one. I have simply adopted this assumption. It is an assumption in favour of the Crown, which invoked at the trial and invokes on appeal a suggested rule developed by the common law in relation to accessories.

56. In R. v. Carter and Savage; ex parte Attorney-General [1990] 2 Qd.R. 371 the Court of Criminal Appeal of Queensland determined by majority that what had been laid down in Dawson about the use that might be made of the conviction of the principal on the trial of an accessory represented the law in Queensland. Like Dawson, Carter and Savage concerned an accessory after the fact.

59. In R. v. Triffett [1992] TASSC 61; [1992] 1 Tas.R. 293 the position of an accessory after the fact was again in question. Underwood, J. declined to follow Dawson and Carter and Savage and held that evidence of the conviction of the principal offender was not admissible on the trial of an accessory to prove commission of the crime by the principal.

62. These three decisions were considered by the trial judge in the present case. His Honour, as I have said, regarded it as the logical consequence of the rule accepted in Dawson that, if principal and accessory were being jointly tried, a jury that was satisfied of the guilt of the principal on evidence admissible against the principal could use that satisfaction in the same way as they could have used an actual conviction of the principal. His Honour said this:

"If evidence ... of the prior conviction of a principal offender is admissible in the trial of an accessory after the fact, then logic would appear to dictate that the conviction of the principal offender of a serious indictable offence at a joint trial is equally admissible in proof of the first element of the charge. It is the conviction which provides the proof, not the individual portions of evidence."

66. His Honour did not say in terms what was to be regarded as "the conviction" of the principal in the case of a joint trial. It would seem that his Honour took the view that the jury's satisfaction of the guilt of the principal, even before the giving of the verdict, was for the purposes of the rule the equivalent of a conviction. It is possible, on the other hand, that his Honour considered that the requirement of the conviction of the principal was to be satisfied by the jury's returning a verdict of guilt against the principal immediately before it returned a verdict of guilt against the accessory, notwithstanding that at that stage neither verdict would have been accepted by the court, quite apart from the question of the stage at which a "conviction" arises once a verdict has been accepted. But, as I have said, it seems to me that his Honour took the view that there was no difference in principle between the jury's having before it a conviction that was proved to have already taken place in earlier proceedings and the jury's reaching the stage of being satisfied of the guilt of the principal.

69. Mr Lyon, who appeared for the applicant, expressly abstained from challenging the correctness of the decision in Dawson. It was his submission that Dawson was confined to actual convictions and was not to be extended to what I might call an impending conviction.

72. In Carter and Savage Carter, J., who delivered the leading judgment, said, at 381-2:

"Had the accused in this case been indicted and tried with Carter, who had pleaded not guilty, it would be ... beyond argument that the accessories could seek the acquittal of the principal ... . On the other hand the conviction of the principal, in such a case, of the offence with which he was charged would satisfy the requirements of proof in the case of the accessories who would become liable to conviction as accessories if the other elements of the offence of being an accessory were established against them."

76. On one view, the second sentence in this passage supports the ruling of the trial judge in the present case. As against this, it is not clear that Carter, J., in speaking of the conviction of the principal in such a case, was contemplating a conviction which rested in whole or in part on evidence which was not, on the conventional approach, admissible against the accessories.

79. The fourth decision considered by the judge in the present case was that of the Court of Appeal in R. v. Spinks [1982] 1 All E.R. 587; (1981) 74 Cr.App.R. 263. That decision concerned the statutory offence of assisting an offender created by s.4(1) of the Criminal Law Act 1967, the English provision which is in similar terms to s.325(1) of the Crimes Act. The English section refers, not to a serious indictable offence, but to an arrestable offence. A man named Fairey and the appellant, Spinks, were charged on the same indictment, Fairey with wounding with intent to do grievous bodily harm and Spinks with assisting Fairey, contrary to s.4(1) of the Criminal Law Act 1967. The only evidence that Fairey had stabbed the victim came from his own admission to the police. The conviction of Spinks was quashed, on the footing that there was no evidence against him that Fairey had committed the arrestable offence. This decision is against the submission made by the Crown in the present case. The jury convicted Fairey and so must have been satisfied by evidence admissible against him that he had committed the offence with which he was charged. On the argument for the Crown in the present case, the jury's satisfaction of the guilt of Fairey would have entitled it to find as against Spinks that the arrestable offence had been committed.

82. That the decision in Spinks should tend against the Crown's present contention is not surprising. For the Court of Appeal, which did not refer to any of the early authorities, expressed the opinion that if Fairey had been convicted before Spinks was tried that conviction could not have been relied on by the Crown to prove the first ingredient of the offence as against Spinks. But five years after Spinks, in R. v. Donald and Donald (1986) 83 Cr.App.R. 49, the Court of Appeal, again dealing with a charge of assisting an offender, contrary to s.4(1) of the Criminal Law Act 1967, appears to have expressed the opinion, at 52, that evidence that the principal offender, Wilson, had been convicted before the trial of the appellants would have been admissible against the appellants to show that he had committed the arrestable offence of robbery.

85. In R. v. Hutton (1991) 56 A.Crim.R. 211 the Court of Criminal Appeal of Queensland applied Dawson and its own previous decision in Carter and Savage in holding that on the trial of a person as an accessory before the fact evidence of the conviction of the principal offender was prima facie evidence of the commission by the principal of the offence. No reference was made to the fact that the two earlier decisions had concerned an accessory after the fact.

88. In England, since 1980 it has been provided by statute that in any proceedings the fact that a person other than the accused has been convicted of an offence shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that that person committed that offence: Police and Criminal Evidence Act 1984, s.74(1). It appears to have been the view of the committee which drafted this provision, the Criminal Law Revision Committee, that at common law evidence of the conviction of the principal offender would not be evidence of his commission of the offence in proceedings against, for example, a person charged with assisting an offender, contrary to s.4(1) of the Criminal Law Act 1967. The Committee stigmatised as wrong and inconvenient what it saw the common law rule to be. The relevant passage, found in its eleventh report (Command 4991), is cited by the Court of Appeal in R. v. Robertson [1987] 1 Q.B. 920 at 926.

91. Now is not the time to consider the rule in Hollington v. Hewthorn [1943] K.B. 587, which has been abrogated in England by the Civil Evidence Act 1968 and not followed in a number of other jurisdictions: Spencer Bower, Turner & Handley, Res Judicata, 3rd ed., paragraphs 267-8.

94. Dawson, or the rule adopted in Dawson, has received varying receptions over the past 150 years. For example, it is doubted in Cross on Evidence, Australian ed., paragraph 5210, but apparently accepted as correct in Spencer Bower, Turner & Handley, Res Judicata, 3rd ed., paragraph 266. An early edition of Roscoe's Criminal Evidence (3rd ed., 1846) accepts it as correct, while a much later edition (16th ed., 1952) casts doubt on it. Phipson on Evidence has, over the years, reflected the ambivalence to be found in the authorities. Starkie on Evidence, 4th ed., 1853, pp.367, 384-5 and 726 adopts the rule, but Taylor on Evidence, 3rd ed., 1858, pp.1355-6, rejects it.

97. As I have said, Mr Lyon presented an argument which accepted the correctness of Dawson. So did the Crown. In these circumstances it would not be appropriate for us to pass judgment upon a not unimportant rule which the Crown has not been required to support by argument. Nevertheless I find myself unable to give proper consideration to the correctness of the ruling in the present case without considering the origin and basis of the rule in Dawson. To do this it is necessary to look not only at the early authorities which are said to give rise to the rule but also at some of the later decisions.

100. It would perhaps be surprising if a rule established by the middle of the eighteenth century in fact originated in some principle still to be found in the modern law of evidence. In 1794 Edmund Burke asserted - no doubt with exaggeration - that a parrot of his acquaintance would be able to get by rote the rules of evidence in half an hour and then repeat them all in five minutes: Holdsworth's History of English Law, vol. 12, p.509. The first book about evidence - Chief Baron Gilbert's Law of Evidence - was published in London in 1756. Much of its subject matter would today be viewed as forming part either of the substantive law or of the law relating to pleading and practice. It contains no systematic discussion of relevancy. In those happy days Blackstone's Commentaries could deal with evidence in criminal cases in four pages: Book 4, pp.350-4. It was not until the second half of the eighteenth century that the modern law of evidence began to emerge, and it then grew rapidly: Holdsworth, vol. 12, pp.504-10; Wigmore on Evidence, Tiller's Revision, s.8.

103. Sir Michael Foster's discourse on accomplices is the earliest authority mentioned in Dawson as supporting the rule that was there adopted. It was published in 1762 as part of his Crown Law and discusses R. v. M'Daniel and Others, in which he himself had delivered the judgment of the Court of King's Bench in 1755. A second and third edition of Foster's Crown Law were published by his nephew, Michael Dodson, containing, among other things, very minor additions to the discourse on accomplices. (The third edition, published in 1809, is cited in Dawson.) The important thing for present purposes is that M'Daniel, and Foster's own discussion of M'Daniel, belong to the middle of the eighteenth century, not to the early nineteenth. Both the case and Foster's commentary on it just precede a period of rapid development of the law of evidence. And they are to be understood in the light of the old rules of the common law about how and when accessories might be prosecuted and - a distinct matter - the reverence shown by the early law of evidence towards "records", as to which see Gilbert, pp.7 et seq. The idea that the record of a court is conclusive is a very old one: Holdsworth, vol. 9, p.130.

106. At common law an accessory, whether before or after the fact, could be tried at the same time as the principal. Otherwise he could not, without his consent, be tried unless the principal had already been not only convicted - in the sense of being found guilty, the sense in which I shall generally use that word in these reasons - but also attainted. (Judgment of outlawry had the same effect as conviction and attainder.) The state of attainder was the automatic result of the pronouncement of the death sentence. Judgment of death was not, however, the inevitable consequence of conviction of a capital offence. The prisoner might, for example, die before sentence, or plead his clergy or a pardon. But once sentence of death was passed the prisoner was attainted, and the consequences of this included forfeiture and corruption of blood: 4 Blackstone's Commentaries, chap. 29; Chitty's Criminal Law, 2nd ed., chap. 17. A principal who, to avoid these consequences, stood mute, or challenged without cause more than the number of jurors the law allowed him to challenge peremptorily, with the result that he could not be tried, let alone convicted and sentenced, would, if he persisted in his obduracy, die after receiving the barbarous sentence of peine forte et dure, but would not have been attainted, and so his accomplice could not be tried. The same result ensued, as regards the accessory, if the principal, having been convicted, escaped the death sentence by claiming his clergy. This immunity enjoyed by the accomplice where the principal, to save his family from the forfeiture of property, obdurately refused to stand his trial, was seen by Sir Michael Foster as a loophole in the law: Crown Law (1762), pp.362-3. It had been closed in 1701, by the statute 1 Anne, sess. 2, c.9, which enabled an accessory to be tried notwithstanding that after conviction the principal had been "admitted to the benefit of his clergy, pardoned or otherwise delivered before attainder" and notwithstanding that the principal had refused to stand his trial by the device of standing mute or challenging too many jurors. Foster thought that the statute of Anne should have gone further, by enacting that the principal who evaded trial by a device should suffer judgment as if convicted of the felony.

109. In cases where, before the statutory reforms of the nineteenth century, principal and accessory were tried together, the common law requirement that the conviction and attainder of the principal precede the conviction of the accessory was met by requiring the jury to consider first whether the principal was guilty and, if they found him not guilty, then to acquit the accessory, but if they found him guilty, then to consider the charge against the accessory. But where the jury, having on the trial of both prisoners found the principal guilty, went on to find the accessory guilty, then, since the conviction and attainder of the principal were prerequisites to the conviction of the accessory, judgment had first to be given against the principal, since if he had the benefit of clergy, or a pardon, the accessory had to be discharged: Coke's Second Institute, chap. 14; 1 Hale, Pleas of the Crown, pp.624-5; Foster, Crown Law, p.360; the learned judgment of the Supreme Court of North Carolina delivered by Ruffin, C.J. in State v. Duncan (1845) 28 N.C. 98. These authorities, and especially State v. Duncan, suggest to my mind that where principal and accessory were tried together the rule was, not that judgment had to be given against the principal before the jury could find a verdict against the accessory, but only that judgment against the principal had to precede judgment against the accessory.

112. The common law rule that no accessory could be convicted unless the principal had been attainted was said to flow from the rule that "there cannot be an accessary, unless there be a principal, no more than there can be a shadow, unless there be a body": Lord Sanchar's Case [1572] EngR 445; (1612) 9 Co.Rep. 116a at 119a; [1572] EngR 445; 77 E.R. 902.

115. It seems to me that the requirement that the principal be attainted before the accessory could be convicted had nothing to do with the consequences which the law attached to attainder but was the result of a desire to ensure that the accessory should not be liable to conviction unless the guilt of the principal was established by judgment. (The judgment of death itself resulted in attainder.) The law was concerned that a mere conviction by a jury might not result in the passing of judgment upon the principal, and wished to ensure that the accessory could not be adjudged criminally liable and so sentenced to death unless the principal had been so adjudged and sentenced. After laying it down that at common law anything which prevents the conviction of the principal makes impossible the conviction of the accessory, Perkins on Criminal Law explains in a footnote to p.584 what is meant by this:

"Hale says that pardon of the principal after he 'be only convict' and before attainder is a bar to the trial of the accessory. 1 Hale P.C. 625. Attainder resulted from the sentence of death which was included in the judgment of conviction of felony. In other words, it was not the establishment of guilt of the principal by plea or verdict which was the magical event in this regard, but the judgment of conviction which was entered thereon. It is in this sense, the correct one it is submitted, that the word 'conviction' is used in the text."

120. In 1826 a provision with a now familiar ring was placed upon the Statute Book by 7 Geo. 4, c.64, s.9: every accessory before the fact "shall be deemed to be guilty of felony, and may be indicted and convicted either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice." But this provision was held not to make triable accessories who could not have been tried before its enactment: R. v. Russell (1832) 1 Mood. 356; 168 E.R. 1302. In 1848 it was enacted by 11 & 12 Vic., c.46, s.1, that "if any person shall become an accessory before the fact to any felony, whether the same be a felony at common law, or by virtue of any statute made or to be made, such person may be indicted, tried, convicted, and punished in all respects as if he were a principal felon." This section was held to have the result that an accessory could be convicted even after the principal had been acquitted: R. v. Hughes [1860] EngR 189; (1860) Bell 242; 169 E.R. 1245. Hall and Hughes were tried together. Hall was acquitted of stealing goods, since no evidence had been offered against him. He gave evidence against Hughes, who was convicted on evidence showing him to be an accessory before the fact to the stealing. The Court had no difficulty in concluding that s.1 of the Act of 1848 had done away with the common law rule that an accessory before the fact could not be convicted unless the principal had been convicted. This was so because the section had made the crime of being an accessory before a substantive offence: the accessory was made a principal felon. Whether the accessory was tried before or at the same time as the principal, he might be convicted, even if the principal was acquitted.

123. Section 2 of the Act of 1848 dealt with accessories after the fact, providing that they might be tried either with or after the principal, or might be indicted and convicted of a substantive felony, whether or not the principal had been convicted or was amenable to justice.

126. The provisions of 7 Geo. 4, c.64, s.9 and 11 & 12 Vic., c.46, ss.1 and 2, were re-enacted by the Accessories and Abettors Act 1861, 24 & 25 Vic., c.94, ss.1, 2 and 3. The course of legislation down to the Act of 1861 is discussed in Stephen's History of the Criminal Law, vol. 2, pp.235-7. The common law rules before their modification or abolition by statute will be found in Coke's Second Institute, chap. 14; 1 Hale, Pleas of the Crown, chap. 57; 2 Hawkins, Pleas of the Crown, chap. 29; Foster's Crown Law (Discourse on Accomplices); 4 Blackstone, pp.318-9; and, a modern work, Perkins on Criminal Law, pp.584-5. That at common law an accessory cannot be convicted unless the principal has been convicted was recognised by Parliament when, as Foster recounts, it reversed the attainder of Lady Lisle, who had been convicted before Jeffreys at the Bloody Assizes of harbouring John Hicks, a member of Monmouth's army in his insurrection against the throne of James the Second. The reversal was based in part on the fact that at the time of Lady Lisle's trial Hicks had not been attainted or convicted. The statute of Anne already mentioned itself recognised in the preamble that the common law required that the principal be attainted before the accessory could be convicted. The common law rules go back at least to the early seventeenth century: Lord Sanchar's Case [1572] EngR 445; (1612) 9 Co.Rep. 116a; 77 E.R. 902. Sanchar was a Scottish baron whose eye was accidentally struck out by his fencing-master, John Turner. Having brooded over his injury for five years, Sanchar arranged for one of his followers to murder Turner, and the follower shot him one evening in a hostelry near his school. The assassin fled into Scotland and could not be apprehended by legal process. All the judges of the Court of King's Bench were consulted and they resolved that, since there could be no accessory without a principal, Sanchar could not be proceeded against until the assassin had been attainted. This would have taken a long time to achieve if the principal could not be apprehended, since it would have to be effected by the lengthy process of having the principal outlawed. The King himself solved the problem by sending his own couriers to seize the principal and bring him to London, where he was convicted and attainted. A few days later Sanchar was convicted and attainted and publicly hanged.

129. In Victoria ss.274 and 275 of the Criminal Law and Practice Statute 1864 corresponded to ss.1 and 3 of the Imperial Accessories and Abettors Act 1861:

"274. Whosoever shall become an accessory before the fact to any felony whether the same be a felony at common law or by virtue of any Act passed or to be passed may be informed against tried convicted and punished in all respects as if he were a principal felon. 275. Whosoever shall become an accessory after the fact to any felony whether the same be a felony at common law or by virtue of any Act passed or to be passed may be informed against and convicted either as an accessory after the fact to the principal felony together with the principal felon or after the conviction of the principal felon or may be informed against and convicted of a substantive felony whether the principal felon shall or shall not have been previously convicted or shall or shall not be amenable to justice and may thereupon be punished in like manner as any accessory after the fact to the same felony if convicted as an accessory may be punished."

133. Relevant provisions of the Crimes Act 1958 are now ss.322B, 322C, 323 and 325(3), the last of these dealing specifically with the modern statutory equivalent of accessories after.

136. Against this background of the old common law rules, I turn to R. v. M'Daniel & Ors, reported in Foster's Crown Law 121; [1746] EngR 531; 168 E.R. 60. A full account of the trial and later proceedings will be found in 10 State Trials 417, published in 1766. A coven of London criminals hatched a plot to take advantage of the common reward given by Act of Parliament and an additional reward of £20 from the parish of Deptford for the apprehension of highwaymen and footpads. Through one of their number, a man named Blee - he was later to be the principal witness against them on their trial - they approached two young men, Kelly and Ellis, whose usual occupation was that of pickpocket and who were ignorant of their fraudulent scheme, and induced them to commit a highway robbery upon another of their number, a man called Salmon, near Deptford. The scheme was that Blee should entice Kelly and Ellis to Deptford by pretending that he knew where to find some linen to steal, that on the highway, by the four-milestone, they should encounter Salmon and that Blee should thereupon propose to his companions that they should rob Salmon. The scheme worked: Blee, on the pretext of taking a walk until it was time to steal the linen, led his companions to the four-milestone, where Salmon on standing by a gate, pretending to make water. The three men seized the opportunity to rob Salmon of his cash and valuables, or so Kelly and Ellis believed. For they did not know that Salmon was standing there waiting to be robbed, so that he could share in the rewards which he and his confederates would receive for the apprehension of the footpads Kelly and Ellis. Blee and his companions then walked back into London. Not long afterwards Kelly and Ellis were apprehended by M'Daniel and some of his confederates and lodged in Maidstone gaol. A few days later the chief constable caused Blee also to be apprehended, and he shortly afterwards made a confession implicating M'Daniel and the others who had plotted to obtain rewards by inducing Kelly and Ellis to rob one of their number.

139. Kelly and Ellis were convicted of highway robbery on 13 August 1754. On Saturday 1 March 1755, at the Old Bailey, M'Daniel and his confederates Blee, Egan and Salmon, stood their trial, charged with being accessories before the fact to the highway robbery of which Kelly and Ellis had been convicted. The first piece of evidence received on this trial was a copy of the record of the conviction of Kelly and Ellis. The judges before whom the men were tried directed the jury to find a special verdict and the jury found that the prisoners had been parties to a scheme to obtain rewards by fraud and that Kelly and Ellis were the victims of that scheme, not being aware of it. Argument on the special verdict took place before all the judges and their decision was given by Foster, J. In accordance with the practice then obtaining, the prisoners had not been represented on their trial but were represented on the argument about the effect of the special verdict. Mr Serjeant Davy did not beat about the bush:

"I have the Honour of attending your Lordships as Council for the Prisoners; and I must own, that I could not have been prevailed upon to have been Council for such a Set of Rogues, had I not been appointed by your Lordships."

I also have the Honour of being appointed by your Lordships as Council for the Defendants; and here I cannot but observe, how tender the Law is in Favour of the worst of Men, that it allows them to make use of Subtilties before such an august Assembly."

147. A number of questions were argued. The two raised by the special verdict were said by the court to be:

"FIRST, whether it appeareth from the Facts stated in the Special Verdict, that any Robbery was committed by Ellis and Kelly on the Person of James Salmon.

SECOND, supposing that Ellis and Kelly were Guilty as Principals in the Robbery, whether the Facts found will warrant the Court in passing Judgment upon the Prisoners or Any of them upon this Indictment."

152. As regards the first question, the court upheld the argument that, as Salmon had consented to being robbed, Kelly and Ellis could not be guilty of robbing him.

155. The second question was not intended to raise the point whether the guilt of the principal offenders was proved for the purposes of the prosecution of the accessories. It was designed to raise questions concerning accessorial liability, including the question whether an accessory could counsel through an intermediary (in this case, Blee). The court determined these points against the prisoners but, being of opinion that, for the reason already given, no robbery had been committed, directed that they all be discharged. (They were later, on the recommendation of the judges, prosecuted for conspiracy. They were convicted and one of them died in the pillory, having been "instantly assaulted with Showers of Oyster-shells, Stones, etc.".)

158. There was another question that had been debated before all the judges, namely, the effect of the conviction of Kelly and Ellis, a fact found by the jury at the beginning of their special verdict, a copy of the record of the conviction having, as I have said, been put in evidence. The primary submission of the Crown was that the record of the conviction operated by way of estoppel and prevented the prisoners from denying that the robbery had been committed; in the alternative it was said that the conviction was evidence of the commission of the robbery, rendering it necessary for the prisoners to prove the contrary. For the prisoners it was argued that proof of the conviction was only of significance procedurally: it did no more than enable the accessories to be tried and was no evidence of the commission of the robbery; in the alternative it was said that if the conviction afforded evidence of commission of the robbery it was not conclusive evidence. The Court found it unnecessary to rule on the competing contentions, saying this:

"SOMETHING was said in arguing of this Case upon the Question, how far a Person charged as an Accessary and brought to his Trial after the Conviction of the Principal, can controvert the Truth of the Fact found by the Verdict against the Principal; or how far the Supposed Accessary can be let in to Show, either that no Felony was committed, or that the Person Convicted as Principal was not Guilty of it. THIS General Question is of great Extent and of mighty Importance in Prosecutions of this kind; and some diversity of Opinion there is among the Judges upon it. BUT it will not be necessary at present to enter at all into it. Because the Court in the present Case must found it's Judgment upon the Facts found by the Verdict, and upon them alone. Now it is expresly found that Salmon was Party to the Original Agreement at the Bell; that He consented to part with his Money and Goods under Colour and Pretence of a Robbery; and that for that Purpose, and in pursuance of this Consent and Agreement, He went to Deptford, and waited there 'till this Colourable Robbery was effected. THIS being the state of the Case with regard to Salmon, the Judges are of Opinion that in Consideration of Law, No Robbery was committed on Him. His Property was not taken from Him against his Will."

162. What the Court was saying was that it had to confine itself to the facts found by the special verdict and that on those facts all the prisoners must be discharged, since there had been no robbery. The first paragraph of the passage cited presupposes that the principal will have been convicted and that this conviction will have been proved before the jury trying the accessory. This is consistent with the common law rule requiring that, unless accessory and principal were tried together, the accessory be not tried until after the principal had been convicted. In that first paragraph the "General Question" is described as whether the conviction of the principal concludes the matter of the principal's guilt as against the accessory: the possible answers are, by implication, that the conviction does conclude the matter and, alternatively, that it affords evidence of the commission of the crime that can be controverted. There is no suggestion that the correct view might be that the conviction affords no evidence against the accessory. It is to be borne in mind that we are here concerned, not with the view of Foster alone, expressed in his discourse, but with the judgment of all the judges, delivered by Foster, J. In discussions of the Dawson question attention has hitherto been directed to the discourse rather than to the judgment of the court. But the judgment of the court, like the discourse, accepts that the conviction is prima facie evidence against the accessory.

165. It was at pp.364-5 of his discourse that Foster expressed the view that a conviction was evidence, but not conclusive evidence, against the accessory of the commission of the principal offence:

"AT a Conference among the Judges upon the Case of M'Daniel and others before Reported, a general Question was moved how Far and in what Cases the Accessary may avail himself of the Insufficiency of the Evidence in Point of Fact, or of the Incompetency of Witnesses in Point of Law, produced against the Principal. And in what Cases He may be let in to shew that the Facts charged and proved against the Principal do not in Judgment of Law amount to Felony. There was in that Case no Occasion to enter far into these Questions; since the Facts upon which the Point of Law then under Consideration must necessarily turn, were all found by the Special Verdict. The general Question was therefore waived. HOWEVER, I will now submit to Consideration a few Things which have occurred to Me upon it. IF the Principal and Accessary are joined in one Indictment and tried Together, which I conceive to be the most eligible Course where Both are Amenable, there is no room to Doubt whether the Accessary may not enter into the full Defence of the Principal; and avail Himself of every Matter of Fact and every Point of Law tending to His Acquittal. For the Accessary is in this Case to be considered as Particeps IN LITE, and this sort of Defence necessarily and directly tendeth to his own Acquittal. THIS is too plain to admit of further Enlargement. WHEN the Accessary is brought to his Trial after the Conviction of the Principal it is not necessary to enter into a Detail of the Evidence on which the Conviction was founded. Nor doth the Indictment aver that the Principal was in Fact Guilty. It is sufficient if it reciteth with proper Certainty the Record of the Conviction. This is Evidence against the Accessary sufficient to put Him upon his Defence. For it is founded on a Legal Presumption that every Thing in the former Proceeding was rightly and properly transacted. But a Presumption of this kind must, I conceive, give way to Facts manifestly and clearly proved. As against the Accessary the Conviction of the Principal will not be conclusive; it is as to Him Res inter Alios acta. AND therefore if it shall come out in Evidence upon the Trial of the Accessary, as it sometimes hath and frequently may, that the Offence of which the Principal was Convicted did not amount to Felony in Him, or not to that Species of Felony with which He was charged, the Accessary may avail himself of this, and ought to be Acquitted. This was the Case of M'Daniel and Others; lately cited."

169. Foster went on to say that it was also open to the accessory, notwithstanding the conviction of the principal, to prove the total innocence of the principal, as by showing that the case was one of mistaken identity.

172. It is to be noted that, while the case of M'Daniel was itself one of accessories before the fact, the example given by Foster in his discourse at p.366 of an accessory after the fact to the larceny of fish shows that he regards the rule as the same for accessories after.

175. The argument in M'Daniel on the effect of proof of the conviction was put as argument about the effect to be given to judgments. The Crown said that records could not be contradicted. Counsel for the prisoner contended that records bound parties and privies but not strangers. After the decision in M'Daniel, the question continued to be argued in terms of the suggested conclusive effect of judgments. So in R. v. Prosser [1783] EngR 184; (1784) 1 Leach 290 (n); [1783] EngR 184; 168 E.R. 247 (n) the prisoner was indicted as an accessory before the fact in procuring Rothwell to counterfeit a half-penny. The record of Rothwell's conviction was admitted by Gould, J. on the authority of what was said by Foster in his discourse, the judge apparently accepting that the record was evidence, but not conclusive evidence, of the felony against the accessory, since a record was conclusive evidence only against those who were parties to it. According to Taylor on Evidence, 3rd ed., 1858, at pp.1355-6, the record of the conviction of a principal cannot be received as any proof of his guilt on the trial of a subsequent indictment against the accessory, since a conviction is not a judgment in rem. On the other hand it is said in Starkie on Evidence, 4th ed., 1853, pp.367-8, that a judgment in a criminal proceeding is in the nature of a judgment in rem and is conclusive evidence as to all its consequences, subject to the exception that an accessory to a felony, notwithstanding the judgment against his principal, is entitled to controvert his guilt, the conviction being in effect only prima facie evidence. Wigmore states that whether a judgment of conviction against the principal is admissible on the trial of the accessory to evidence the commission of the crime by the principal depends on the doctrine of the effect of judgments: Evidence, Chadbourn Revision, paragraph 1079.

178. Pennsylvania is one of the American States the courts of which have accepted the correctness of the rule adopted in Dawson. That the rule requires a judgment, not a mere finding of guilt by a jury, is further shown by two decisions of the Supreme Court of that State, Commonwealth v. Minnich (1915) 250 Pa. 363; 95 Atl. 565 and Commonwealth v. Vitale (1915) 250 Pa. 548; 95 Atl. 723. In both cases, on the trial of an accessory before the fact evidence was let in that an earlier jury had found the principal offender guilty. In each case the conviction of the accessory was quashed on the ground that inadmissible evidence had been received, in that the evidence of the verdict of guilty against the principal offender, tendered as evidence of his guilt against the accessory, did not afford such evidence, since there had been a verdict but no judgment had been entered upon it. In Vitale it was held to make no difference that by the time the appeal by the accessory was heard judgment had been entered on the verdict against the principal offender and had been affirmed on appeal. The Court relied in part on the decision of the Supreme Court of North Carolina in State v. Duncan (1845) 28 N.C. 98, a case I have already mentioned as containing a discussion of the old common law rules, where the material facts were the same and the court ordered a new trial, on the ground that, where the accessory is not tried with the principal, judgment against the latter is indispensable evidence against the former. Such a judgment was said, on the authority of M'Daniel, to be prima facie evidence of the principal's guilt against the accessory. Ruffin, C.J. said, at 102, that North Carolina had no statute altering the rule that "an accessory cannot be indicted as for a substantive felony, but only together with the principal, or after the conviction and attainder of the principal." In Vitale, at 723, mention is made of a statute enabling an accessory before to be indicted, tried and convicted as if he were the principal felon. The judgment then records that although Vitale was indicted as a principal he was tried as an accessory before.

181. In the United States there are decisions in several jurisdictions accepting the rule that was adopted in Dawson. It was accepted in 1845 in North Carolina (State v. Duncan 28 N.C. 98), in 1879 in Georgia (Anderson v. State 63 Ga. 675), in 1880 in New York (Levy v. People 80 N.Y. 327), in 1898 in South Carolina (State v. Burbage 51 S.C. 284; 28 S.E. 937); in 1913 in New Jersey (State v. Fiore 85 N.J.L. 311; 88 Atl. 1039), in 1915 in Pennsylvania (Commonwealth v. Minnich 250 Pa. 363; 95 Atl. 565; Commonwealth v. Vitale 250 Pa. 548; 95 Atl. 723), in 1921 in Arkansas (Terry v. State 149 Ark. 462; 233 S.W. 673) and in 1938 in Texas (Aston v. State 136 Tex. Cr.R. 12; 122 S.W. 2d 1073). A number of these decisions give further support to the view that it is the judgment of conviction, not the jury's verdict, that affords prima facie evidence against the accessory. In Terry v. State the fact that the time for appealing or applying for a new trial had not expired when the record was tendered did not prevent its reception.

184. The matter of legislative reform in the United States is dealt with in Perkins on Criminal Law, pp.588-95 and LaFave and Scott, Criminal Law, 2nd ed., pp.574-5. Perkins, p.591, treats the Dawson rule as good law; LaFave and Scott, p.575, do not.

187. In the United States the Federal Rules of Evidence (the status of which is dealt with in McCormick on Evidence, 4th ed., pp.547 et seq.) do not admit as an exception to the hearsay rule evidence of the conviction of a person other than the accused when offered by the government in a criminal prosecution for purposes other than the impeachment of a witness. The relevant rule is Federal Rule 803(22), discussed in McCormick, pp.297-9, 670 and 697-8.

190. The correctness of Levy v. People was accepted by the Tenth Circuit Court of Appeals in Colosacco v. United States [1952] USCA10 69; (1952) 196 F.2d 165. There is no reference in Colosacco to the doubt expressed by the Supreme Court of the United States in Kirby v. United States [1899] USSC 86; (1899) 174 U.S. 47 at 59, where the majority justices described the rule that a record of conviction of a principal in felony was evidence against the accessory as "not strictly in accordance with the principle respecting the admissibility of verdicts as evidence against third persons" and added that it seemed that such a record would not now be received as evidence of the guilt of the principal as against the accessory after the fact. The Court referred also to the defendant's constitutional right of confrontation, but the judgment gives the impression that this is viewed as an additional and independent ground of inadmissibility.

193. I return to the application before us. The Crown relied on the rule accepted in Dawson, which it submitted should be extended to cover a case like this. The evidence against Heaney was in part evidence which was on any view also admissible against the applicant as bearing on whether the crime of murder had been committed, being evidence which did not consist of some form of admission - in the widest sense - by Heaney. But a large part of the Crown case against Heaney consisted of oral admissions made by her to the witnesses Engels and her own sister. Before us, it was argued by the Crown, in support of the conviction of the applicant, that on the trial of an accessory after the fact evidence of a confession of guilt made by the principal offender is admissible. No authority was cited. I took the submission to be that the evidence was admissible, not by reason of a special rule to that effect, but by reason of a wider rule whereby on the trial of an accessory after the fact any evidence that would be admissible on the trial of the principal offender is admissible to prove the principal offence.

196. In Dawson itself, the principal's plea of guilty was proved, but the Court of Criminal Appeal treated that plea as significant only as leading to a conviction: there is nothing in the judgment, or in the authorities referred to in the judgment, to suggest that the plea of guilty was regarded as having an independent significance, or that the court took the view that the only convictions covered by the rule were those resulting from a plea of guilty.

199. In Carter and Savage the main judgment was delivered by Carter, J. At 380 his Honour said:

"In my view proof that Carter, when arraigned upon the charge, unequivocally acknowledged his guilt by his plea of guilty and consequently proof of his conviction for that offence was prima facie evidence in the trial of the accused that Carter had committed the acts necessary to constitute the offence of murder."

203. This passage, especially having regard to the expression "consequently", suggests that it was the plea of guilty which made the conviction prima facie evidence. At 383-4 Carter, J. said:

"If a person is charged with murder - perhaps the most serious of crimes - and unequivocally acknowledges his guilt by his plea of guilty, proof of that fact may logically be seen to permit of the inference that that person did the acts necessary to constitute that offence and that proof of the fact of that conviction upon his plea of guilty in criminal proceedings against an accessory, where it is necessary to prove the commission of the offence by the principal, should be regarded as prima facie evidence that the principal did the acts necessary to constitute the offence of, in this case, murder."

207. On the other hand, the answer to the first question given by the majority makes no reference to a plea of guilty, the answer being in these terms:

"Upon the trial of an accessory after the fact proof of the conviction of the principal offender is admissible and constitutes prima facie evidence that the principal offender did the acts and possessed the state of mind (if any) necessary to constitute the principal offence."

211. The other member of the majority, Kelly, S.P.J. observed, at 372-3:

"An unambiguous plea of guilty is an admission of all the facts essential to the offence and I would, with respect, agree with the view of Carter J. that proof that Carter, when arraigned upon the charge of murder, unequivocally acknowledged his guilt by his plea of guilty and consequently proof of his conviction for that offence was prima facie evidence in the trial of the accused that Carter had committed the acts necessary to constitute the offence of murder."

215. There are at least four possible views of what it was the majority decided in the Queensland case of Carter and Savage. The first is that stated in the formal answer to the question, an answer which refers to the conviction and does not distinguish between convictions which do and convictions which do not follow upon a plea of guilty. The second view is that it is only a conviction founded upon a plea of guilty which has the effect mentioned in the formal answer to the question. The third is that the rule is not really concerned with a conviction, which is inessential, and that it is the plea of guilty which affords the prima facie evidence of commission of the offence. The fourth is that either a plea of guilty or a conviction is enough to afford that evidence. Other variants could be introduced by substituting for "a plea of guilty" the words "an admission of guilt, whether informal or by a plea of guilty."

218. It is to be noted that the passage I have cited from pp.383-4 in the judgment of Carter, J. immediately follows a reference to Dawson and to three of the authorities cited in Dawson, Foster's Crown Law, R. v. Prosser and Cook v. Field. In addition Carter, J. relies on R. v. Blick [1830] EngR 262; (1830) 4 Car. & P. 377; 172 E.R. 747. Of these authorities the only one which refers to a plea of guilty is R. v. Blick, where the prisoner was charged with receiving and an examined copy of the record of the conviction of the thief had been put in evidence, which showed that he had pleaded guilty. Bosanquet, J. said, "There is no doubt that the accessary may controvert the guilt of the principal; but I take it, that whatever is evidence against the principal, is prima facie evidence of the principal felony, as against the accessary; and if the principal is convicted on his own confession, that is prima facie evidence of his guilt as against the accessary, but not conclusive."

221. We are not concerned with when a receiver could be charged as an accessory after the fact (as to which see Stephen's History of the Criminal Law, vol. 2, p.238; Russell on Crime, 12th ed., pp.163-4). The proposition of Bosanquet, J. that whatever is evidence against the principal is prima facie evidence of the principal felony as against the accessory was, as we shall see, to recur in later cases.

224. Not only does the passage I have cited from the judgment of Carter, J. at pp.383-4 of the report immediately follow a reference to Foster's Crown Law, but his own observation at p.383 ("I am not persuaded to depart from it") shows that he regarded himself as stating the same rule as that laid down by Foster. Yet nowhere in Foster's discussion is there any reference to a plea of guilty, and in the case of M'Daniel the persons charged with robbery had not pleaded guilty but had been convicted after a trial, as appears from 10 State Trials 417 at 418.

227. In the subsequent decision of the Court of Criminal Appeal of Queensland in Hutton (1991) 56 A.Crim.R. 211, on the trial of a man for doing grievous bodily harm with intent to maim, the Crown case was that Hutton had been an accessory before to a crime committed by one Bartorelli. Bartorelli was called by the Crown on the trial of Hutton and his conviction of the offence was proved, as also was the fact that he had pleaded guilty. In referring to Dawson and Carter and Savage Ryan, J., at 212-3, remarked that proof of that conviction constituted prima facie evidence that the principal offender committed the offence. On the other hand at 217 de Jersey, J., with whom Cooper, J. concurred, referred to Carter and Savage for the proposition that evidence of Bartorelli's plea of guilty was prima facie evidence of his commission of the offence.

230. It has been suggested that accessories after the fact stand in a special position as regards the point now under discussion, since they are not parties to the principal offence, and that one result of this is that a plea of guilty by the principal offender may be used as evidence of his guilt on their trial. The decision giving rise to this suggestion is R. v. Vinette [1975] 2 S.C.R. 222; 50 D.L.R. (3d) 697. It had been held by the Quebec Court of Appeal that on the trial of an alleged accessory after the fact to manslaughter evidence by the principal that he pleaded guilty to manslaughter was admissible to prove the commission of that offence as against the accessory. The Court, while accepting that a plea of guilty by one participant in a crime could not be used on the trial of another, distinguished the case of an accessory after the fact on the ground that an accessory after is not a party to the principal offence. The decision on this point was unanimously upheld by the Supreme Court of Canada. Laskin, C.J.C. did no more than remark that the plea of guilty was admissible against the accused. Pigeon, J. delivered the leading judgment. He adopted the reasoning of the Court of Appeal of Quebec distinguishing between a participant in the offence and an accessory after and went on to cite two federal decisions from the United States for the proposition that any evidence admissible against the principal is admissible against an accessory after the fact. (It will be recalled that this had been laid down many years before by Bosanquet, J. in Blick.) A plea of guilty, being obviously admissible evidence against the principal, was by this rule, Pigeon, J. said, to be admitted against an accessory after the fact for the purpose of proving the principal crime. The two decisions cited by Pigeon, J. are Colosacco v. U.S. [1952] USCA10 69; (1952) 196 F.2d 165 and Barone v. U.S. [1953] USCA8 146; (1953) 205 F.2d 909. In the first case Colosacco and one Dolan were charged by the same indictment, Colosacco as accessory before - not after, it should be noted - the fact and Dolan as principal. Dolan pleaded guilty and this fact was proved on the trial of Colosacco. The Tenth Circuit Court of Appeals determined that Dolan's plea of guilty was prima facie evidence of his guilt on the trial of Colosacco. What the Court said, at 167, was this:

"Conviction of the principal is prima facie evidence of the principal's guilt on the trial of the aider and abettor. Other evidence which would have been admissible against the principal may be admitted in evidence to prove the guilt of the principal on the trial of the aider and abettor." (Footnotes omitted.)

234. In Barone the accused was charged as an accessory after the fact to a bank robbery. In its judgment the Eighth Circuit Court of Appeals observed, at 914:

"It is urged that the court erred in admitting certain testimony claimed to be hearsay as to defendant. It was, however, incumbent upon the government to prove the burglary of the bank by Kitts, Hardy, and Belcastro and the transportation of the stolen property in interstate commerce. On the trial of defendant as an accessory after the fact any evidence admissible to prove the principal crime was admissible against him and the evidence objected to as hearsay was not hearsay when offered as proof of the burglary and the transportation. Neal v. United States, 8 Cir., 102 F.2d 643."

238. The case of Neal was one in which the defendant's brother had pleaded guilty to five counts of stealing from a bank and the defendant was charged as an accessory after the fact. It seems that the conviction of the principal and indeed the sentence passed were proved before the jury on the trial of the accessory. In addition the government called a great deal of evidence to prove the thefts, all of it being evidence which would, on conventional principles, have been admissible against both the principal and accessory for the purpose of proving the principal offence. The Court was unanimously of opinion that there was substantial evidence to support a finding on the trial of the defendant that the principal offence had been committed and that the defendant had knowledge of that fact. The difference between the majority and the dissentient was on whether there was evidence that the defendant had suppressed evidence against his brother - and so become an accessory after - by concealing the existence of a large sum of money which he had found in his brother's room. The majority considered that the finding of the cash would not have been evidence admissible against the brother of the commission of the principal offence, so that concealment of the finding of the money could not be viewed as assisting the principal to escape punishment.

241. I have not myself found either in the majority or in the dissenting opinion any support for the view that the commission of the principal offence may be proved as against an accessory after by evidence (such as a confession) which would be admissible on the trial of the principal but would not be, according to conventional principles, admissible against the accessory. The question was not discussed. There was passing reference in the dissenting opinion at 651 to the brother's confession and to the record of his conviction, but it is possible that Woodrough, J. was here concerned with the suggested assistance given by the accessory and was saying only that the defendant's concealment of the finding of the money was a concealment of evidence which, taken with the brother's confession, might well have led to the brother's conviction. In other words, it may be that Woodrough, J. was concerned only with the question whether material evidence had been suppressed by the accessory, and not with the question by what evidence the commission of the principal offence may be proved on the trial of the accessory. It is not clear.

244. The passage cited above from Barone is equivocal on the question whether the true rule is, on the one hand, that all evidence admissible against the principal to prove the principal crime (including his confessions) is admissible to prove that crime against the accessory or, on the other hand, that, since the principal offence must be proved on the trial of the accessory, any evidence tending to prove its commission is admissible on the trial of the accessory, subject always to the qualification that the fact must be proved by evidence admissible against the accessory.

247. In dealing with the reception of an admission made by a third person where there exists privity (that is, identity) of interest between two or more persons, and in dealing specifically with the cases of co-conspirators, joint tortfeasors and a seditious society, Wigmore on Evidence, Chadbourn Revision, para.1079 at p.189, makes this assertion:

"(c) that the confession of a principal is admissible, on the trial of the accessory, to evidence the commission of the crime by the principal, seems clear on the present principle, supposing some evidence of the defendant's co-operation to be first furnished."

251. The footnotes cite a number of decisions in support of and against the proposition. The paragraph itself does not make it clear whether Wigmore is speaking of accessories before, accessories after or both categories of offender, but reference to the cases cited in the two footnotes to sub-paragraph (c) suggests that the intention is to refer to both kinds of accessory. The only English decision cited in support of the proposition is R. v. Cox [1858] EngR 122; [1858] 1 F. & F. 90; 175 E.R. 639, where on a trial for receiving Crowder, J. instructed the jury that the evidence that the property was stolen was the confession of the thief, made in the presence of the prisoner. The last seven words of this direction make it impossible to regard the decision as authority for the proposition for which it is cited, since they raise at once the much discussed question of the circumstances in which something said in the presence of the accused is evidence. The English decision cited by Wigmore as against his proposition is R. v. Turner [1832] 1 Mood. 347; 168 E.R. 1298, where it is said that all the judges (except Lord Lyndhurst, C.B. and Taunton, J.) met and were unanimously of opinion that the confession of the alleged thief was no evidence of the theft against the alleged receiver. The same view was taken by the Supreme Court of the United States in Kirby v. United States [1899] USSC 86; 174 U.S. 47 at 57-60.

254. The mention by Wigmore of "the present principle", coupled with his requirement that some evidence of the defendant's co-operation be first furnished, suggests that the admissibility of the confession of a principal against an accessory is thought by him to depend upon the existence of a common purpose. If this is so, then, whatever might be said of the accessory before, who will have encouraged the commission of the principal offence, it cannot be suggested that there will necessarily be any common purpose linking principal offender and accessory after. The assistance given by the accessory after may be unknown to the principal offender, and there may have been no communication at any stage between them. There is further difficulty about Wigmore's proposition, even in relation to accessories before. A confession by one co-conspirator is not admissible against another, except in the unlikely event that it can be said to be made in furtherance of the common purpose: Tripodi v. R. [1961] HCA 22; (1961) 104 C.L.R. 1 at 7; R. v. Windsor [1953] N.Z.L.R. 83 at 90 (where Turner is endorsed); R. v. Masters (1992) 26 N.S.W.L.R. 450 at 461-3.

257. The suggestion that the confession of the principal offender may be used to prove the commission of that offence as against an accessory after is contrary to principle and not supported by any satisfactory authority. It runs counter to the fundamental notion that the guilt of an accused person can be proved only by evidence admissible against that person and the fundamental principle which excludes hearsay evidence, there being no exception to that principle within which the case can be brought. It is true that the accessory after is not a party to the principal offence. But the commission of that offence by the principal is an element of the offence committed by the accessory and, like the other elements, must be proved by evidence admissible against the accessory.

260. The fundamental objection - hearsay - was well expressed long ago by the Supreme Court of Wisconsin in a case in which the accused, Ogden, was charged as an accessory before the fact to the crime of arson, said to have been committed by one Wright, who, having fled, had never been charged. Ogden was indicted under a statutory provision corresponding to 7 Geo. 4, c.64, s.9, discussed above. I am concerned, not with the effect of that statute, but with what the Court, through Dixon, C.J., said on the question of admissibility (Ogden v. State (1860) 12 Wis. 532 at 532-4):

"The only evidence offered on the trial, of the guilt of Wright, was his admissions made to Darius Dodd and Stiles Wheeler, two of the witnesses produced and sworn on the part of the state. Dodd testified that he resided in the county of Portage, and knew Wright; that after the fire, and in the month of March, 1860, he had a conversation with him in relation to it, at the city of Dubuque, in the state of Iowa, and that Wright said he burned the barn by lighting matches and putting them in the straw in the night time. Wheeler testified that he saw Wright the next morning after the barn was burned, when he said, 'he had better get out of this, that he had burned the barn.' This was all the testimony offered concerning Wright's guilt or connection with the affair. To its reception proper objections and exceptions were taken by the prisoner. It is very evident that upon this testimony the conviction cannot be sustained. In order to establish the guilt of Ogden, it was first incumbent on the prosecutor to prove the guilt of Wright as alleged in the indictment. This done, he must then prove that Ogden previously procured, hired, advised or commanded Wright to commit the felony. Both these facts must be established by competent evidence. Now, however the confessions of Wright, as to the first, might have been used against him, had he been indicted and put upon his trial, it is very evident that as against Ogden they were wholly inadmissible. As to him they were mere hearsay, and open to all the objections which exist to that kind of testimony. For however clearly it may have appeared that Ogden counseled and advised Wright to commit the offense, yet if Wright never did so in point of fact, and the barn was set on fire by some one else, or by other means, then Ogden was innocent of the crime with the commission of which he stood charged. If such admissions were to be received, Wright, after the advice was given, but without having acted upon it, and being innocent, and believing that his personal safety would not thereby be endangered, might make them, from feelings of ill-will and hatred to Ogden, for the sole purpose of deceiving and misleading others, and betraying him into the conviction of an offense of which he knew him to be innocent. They were made privately, and without the sanction of an oath; the jury had not the advantage of observing his deportment, or the manner in which his statements were made; no opportunity was afforded to ascertain whether he was friendly or hostile to the accused; he was subjected to no cross-examination, and his motives, means of knowledge and situation, could not be inquired into and exposed."

264. Before parting with the Canadian case of Vinette I should note that one thing said by Pigeon, J., at 701, has caused difficulty:

"Whereas in the case of several persons accused of the same offence, each may be tried before or after the others, plead guilty before or after any of the others, or be convicted regardless of the decision against any of the others, an accessory after the fact may not be tried or tender a valid plea of guilty until the principal is convicted, so that if the latter is acquitted the accessory must of necessity be discharged."

268. Attention has since been drawn by the Court of Appeal of British Columbia to the evident failure of Pigeon, J. to advert to statutory provisions, first enacted in the United Kingdom in 1848 (11 & 12 Vic., c.46, s.2, discussed above) and in Canada in 1868, which permitted the conviction of an accessory after the fact notwithstanding that the principal had not been convicted or was not amenable to justice: R. v. Camponi (1993) 82 C.C.C. (3d) 506. There is in addition the decision of the Court of Appeal of Alberta in R. v. Anderson (1980) 57 C.C.C. (2d) 255. Accessories after the fact appealed against their conviction on the ground that it had not been proved that the principal offenders had been convicted or pleaded guilty. The ground was based on the passage in the judgment of Pigeon, J. cited above, which was said to require as a matter of law that before a person could be convicted as an accessory after the fact the principal must have either pleaded guilty or been convicted. The Court determined that Pigeon, J. had not intended to lay down any such proposition and that, so far as the matter of the guilt of the principal offender was concerned, it was sufficient to prove, on the trial of the accessory, that the principal offence had been committed. In Anderson the Court, after considering Vinette, laid it down that on the trial of an accessory after the fact proof of the commission of the principal offence might be made by any evidence admissible against the principal. The decision does not, however, lay down in terms that confessional evidence is included, although if what the Court says is to be taken literally this must be so.

271. In my opinion, for the reasons I have given, on the trial of an accessory (whether before or after) evidence is not admissible against the accessory of an admission or confession made by the principal.

274. I return to the rule recognised in Dawson. As I said much earlier in these reasons, I consider this case on the assumption that the statutory innovations whereby the distinction between felony and misdemeanour was abolished do not render inapplicable authorities and rules or principles concerning accessories. As I also said earlier, in the absence of a challenge to it, it is not for us to say whether the Dawson rule would survive a challenge. The decision should continue to be applied by trial judges unless and until it is overruled by the Court of Appeal or the High Court. If it were appropriate for us to decide whether Dawson is correct, argument and counter-argument could readily be found. Opponents of the rule would argue that it is founded on an erroneous view of the effect of judgments of conviction, that it has on occasions been rejected or at least doubted and that it has unjust consequences in that it places an evidentiary burden on accused persons. They would say that it is the by-product of an ancient rule, long since abrogated by statute, requiring conviction of the principal before the accomplice may be convicted. They would contend that the commission of the principal offence is an element of the offence with which the accessory is charged and should stand in the same position as the other elements as regards proof. Supporters of the rule might say that the origins of the rule, while of interest, are not of importance; that the rule is an old one and is to be judged by its practical utility; that it is a useful rule, not unjust in its consequences; and that it is supported by a good deal of authority. They might add a contention that, while the commission of the principal offence can be viewed as an element of the crime with which the accessory is charged, it is, so to speak, an element extrinsic to the accused and his conduct, and one in relation to which he may without unfairness be placed at least under an evidential (as opposed to persuasive) burden by the conviction of the principal. Again, they might say that in England the enactment of the Police and Criminal Evidence Act 1984, s.74(1), recognises that the law as laid down in Dawson provides a just and convenient rule.

277. It is clear, and has been clear for a very long time, that the conviction of the principal which had to precede the conviction of the accessory and which, according to the rule accepted in Dawson, afforded prima facie evidence against the accessory of the principal offence, is not the verdict of the jury but the judgment of the court whereby the principal was sentenced to death. Hence the decisions from the United States setting aside convictions of accessories where the principal, although found guilty by the jury, had yet to suffer judgment. Hence the rule that, even where principal and accessory were tried together, judgment had to be given against the former before it could be pronounced upon the latter. Since the statutory reforms of the nineteenth century the law has been concerned with the conviction of the principal, not as an essential preliminary to the conviction of the accessory, but as possible prima facie evidence of the principal offence against him. I have not found in the books any suggestion that where principal and accessory are tried together the jury may use the impending conviction of the principal as prima facie evidence of his guilt for the purpose of the trial of the accessory, unless it is to be derived from the decisions already mentioned where, on the separate trial of an accessory, it is said that any evidence that would be admissible against the principal is admissible against the accessory. I have already expressed my opinion of those decisions.

280. I do not think that a rule, whatever its utility may be - and, as I have said, arguments can be put both ways on whether the rule in Dawson is fair and convenient - should be extended beyond its present limits by holding that, as against the accessory, prima facie evidence of the principal's guilt is afforded not only by a judgment against him but also an impending verdict of the jury against him. Having regard to modern conceptions, such a course could really only be justified by the adoption of the view - at odds with those conceptions - that literally any evidence admissible against the principal is also admissible against the accessory.

283. It follows that the applicant's conviction cannot stand.

286. As I mentioned much earlier, I understood Mr Kayser to concede that, unless the jury could use Heaney's oral admissions as evidence against the applicant, it was not open to them to find, as against the applicant, that the principal offence was committed. In view of this it would be inappropriate to order a new trial.

289. This view makes it unnecessary to consider whether we should have regard to the fact that Heaney seeks to have her own conviction set aside by an application yet to be heard. Nor do we need to ask ourselves whether, in ordering a retrial, we can and should take any steps to avoid the result that Heaney's conviction, assuming it not to have been set aside in the meantime, would, by virtue of Dawson, be available to the Crown as prima facie evidence that Heaney murdered Piatkov.

292. In Carter and Savage the dissentient, Derrington, J., at 377, suggested that Queensland might benefit from legislation along the lines of the English Police and Criminal Evidence Act 1984, s.74(1). It seems to me that consideration could usefully be given in Victoria to whether similar legislation is desirable.

297. I have had the considerable advantage of reading the draft reasons for judgment prepared by Brooking, J.A. I agree that the appeal should be allowed for the reasons he has given.

300. Neither party questioned the decision in R. v. Dawson [1961] VicRp 117; [1961] V.R. 773. The applicant sought to distinguish the decision. The ability of the prosecution to use the conviction of the principal offender as prima facie evidence of one element of the offence charged against an accessory infringes to some extent upon the principle, described in R. v. Spinks [1982] 1 All E.R. 587, at p. 589, as "the universal rule", that an accused person is only to be convicted upon evidence which is admissible against him. The precedents for and the utility of the encroachment represented by the decision in Dawson upon the general principle are set out by Brooking, J.A. In my view the qualification to the general principle is sensible and will not operate unjustly.

303. The learned trial judge in the present case sought to increase the scope of the incursion into the general principle to enable the applicant's guilt to be founded upon the evidence which would eventually found the conviction of the principal. A result of such an approach where the principal and the accessory are tried together is effectively to elevate the conviction of the principal from prima facie evidence capable of rebuttal to the factor that concludes the issue of the commission of the principal offence. In my opinion the decision of the trial judge does more than translate the anomaly represented by the admissibility in one trial of a conviction obtained in another trial to the circumstance of a joint trial of principal and accessory.

306. It is one thing for the jury to take into account the fact of the conviction of the principal; it is another for the jury to base its verdict upon the evidence which can lead to the conviction of the principal. The trial judge said, in the course of ruling upon the applicant's submission that he had no case to answer, "It is the conviction which provides the proof, not the individual portions of the evidence." However, the effect of his charge was that the applicant was found guilty on the basis of evidence admissible only against Heaney. I do not think that the ability of an accessory who is tried together with the principal offender to participate in the trial of the elements of the principal offence, for example, by cross-examining witnesses to a confession by the principal offender, justifies the result that the accessory can be convicted on the basis of the principal offender's confession. An accused is not to be convicted by the confession of another.

309. In my opinion the anomaly represented by the decision in Dawson should not be extended, notwithstanding the Crown's argument that as the commission of the principal offence is a fact external to the accessory, it may be proved by evidence otherwise not admissible against the accessory.