Is the evidence of Messrs Ahmad and Altaf admissible as an "admission"?
18 An "admission" is a previous representation that is made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding) and is adverse to the person's interest in the outcome of the proceedings (Evidence Act Dictionary Part 1).
19 The hearsay rule does not apply to evidence of an admission (s 81(1) Evidence Act).
20 The hearsay rule is contained in s 59(1) of the Evidence Act:
"(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact."
21 A previous representation is defined in the Dictionary to mean "a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced".
22 The defence argument, in relation to the present matter, it will be recalled, is that it is not reasonably open for the Court to conclude that the alleged admission was made by the accused. Secondly, it cannot be said that the remarks made by the second man were adverse to the accused's interest in the outcome of the proceeding. Although it was not argued by Mr Boulten SC on his client's behalf, it seems to me that the first point may have a degree of application to the second limb of the argument. By this I mean that if it is not reasonable to find that the admission was made by the accused, can it in any event be said that the statements were in the sense contemplated by the section be "adverse" to the accused's interest in the outcome to the proceeding? The reason why the issue arises as to whether it is reasonably open to conclude that the admission was made by the accused is because of the provisions of s 88 of the Evidence Act. This is in the following terms:
"88. For the purposes of determining whether evidence of an admission is admissible the Court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission".
23 In Cross on Evidence (6th Australian Edition), the learned author makes the point that this section "relaxes the standard of proof". The further point is made, however, namely that the "finding" that a person made an admission where it is reasonably open to do so is not a finding that is made for all purposes. Rather it is only for "the purpose of determining whether evidence of an admission is admissible". If it is admitted, the question for the tribunal of fact will remain: was it made? If it was not made, it will be disregarded (para 35640).
24 The critical question here is whether the representations alleged to have been made by the second man in the premises at Lakemba may themselves be relied upon so as to lead to a finding ("reasonably open to find") that the statements were made by the accused. After all, the Crown argued, the accused's name was Faheem; he was at that time an architect working in the city; and he came from the City of Sialkot near Lahore.
25 The argument presented by the Crown however relied first upon other material apart from the representations themselves. This is evidence that the butcher from Lakemba and the accused were known to each other; that the butcher was in telephone contact (as was the accused) with Willie Brigitte on a number of occasions; and that the accused and Willie Brigitte were at other times in telephone contact with a "mutual acquaintance" in Pakistan.
26 In my view, this body of evidence, taken by itself, could not go so far as to lead to a conclusion that it is reasonably open to find it was the accused who was present in the Lakemba house and that it was he who had made the representations. The Crown did not argue to the contrary.
27 The remaining critical body of evidence is that contained in the representations themselves and in their truth, if they are to be admitted as exceptions to the hearsay rule.
28 Initially, no authority was cited by either side in relation to this point. Free from authority, it seems plain to me that the representations cannot be used for the purposes of making a finding that it was the accused who may have made the admissions constituted by the representations. There are essentially two reasons for this. First, it would be entirely circular to make use of the statements by the second man for this purpose. If there be no evidence beyond the representations themselves from which it might reasonably be open to find the statements were made by the accused, the conclusion they were or might have been made by him can only be reached by accepting the truth of the statements and by proceeding on the assumption that they were made by him. For example, if a person not identified in proceedings against John Smith had said to another "I am John Smith", that without more would not be an admission that the person was John Smith unless one assumed the truth of the statement and, in addition, assumed that it was the John Smith on trial.
29 Moreover, by accepting the truth of the statements and making the relevant assumption in the present proceedings, it would be quite unnecessary to place reliance on the representations themselves to prove it was the accused who was at the Boorea Avenue premises. As a matter of logic, the accused's presence at the house in Lakemba will have already been accepted before turning to the representations themselves to see whether they can establish that fact relevant to a fact in issue.
30 Secondly, assuming, as I do, that the statements made by the second man were consistent with the background and occupation of the accused, they do not prove of themselves that it he who made the statements. It would still be necessary for the tribunal of fact to draw inferences in relation to either the statements or the truth of the statements and to place those inferences along side other known evidence before making a deduction or drawing an inference that it was or was not the accused who was present in the house.
31 Later in the argument, Mr Lange, junior counsel for the accused, properly and fairly, drew my attention to a decision of the English Court of Appeal (Criminal Division) given on 20 December 2000. The decision did not favour the defence argument. The case is that of Regina v Ward, Andrews and Broadley. In the trial, a point had been taken as to the admissibility of certain police evidence on the basis that it was hearsay. On three occasions in 1999, when stopped by police, the occupants in a certain motor vehicles had been asked to identify themselves. A passenger in those cars on the three occasions gave his name as "Michael Kevin Ward", gave his date of birth and gave his address. The date of birth and the address were identical with those of the appellant Ward. The police officer who could provide the evidence of these conversations could not however independently identify the appellant Ward as a passenger in the motor car on the three occasions. The argument before the Court of Appeal in its Criminal Division was that the evidence of the conversations was hearsay and thus inadmissible. Lord Justice Waller with (whom Mr Justice Douglas Brown and his Honour Judge Stephens QC agreed) said at paras 37-40: -
"37. Prime facie thus it would appear that the police officer's evidence was hearsay. However, it is an exception to the hearsay rule that any statement, wholly or partly adverse to the defendant's interests, may be given in evidence. The matter is governed by s 76 of The Police and Criminal Evidence Act 1984 but was also the position at common law.
38. There is, as Mr Butt accepted on behalf of the Crown, an obvious circularity in the argument that in the instant case an admission was being relied on because it is the very evidence which might be infringing the hearsay rule which is being relied on to establish the admission. It is, we have to say, somewhat puzzling that there appears to be no authority dealing directly with this point, which, it would seem likely, has arisen on numerous occasions.
39. It is an unattractive proposition that where someone identifies himself as compellingly as was done in this case by the appellant Ward, that he can object to that evidence being put before the jury at all and then not give evidence so as to expose himself to cross-examination in relation to the question whether he was present in that motor car on the particular day. Equally, the application of the hearsay rule and the dangers from which it protects defendants must at all times be borne in mind.
40. We are of the view that the answer to the conundrum lies in the quality of the identification evidence which is being given. Thus, if as in this case, a man is giving his full name, is giving a date of birth which is the date of birth of the person with that full name, and is giving an address which is the address of the person with that full name, the evidence is strong to establish an admission. If, in addition, as in the case of the evidence relating to the date 9 June 1999 there is evidence which supports part-ownership of the motor car in the appellant Ward, that gives further support to such evidence."
32 With every respect to the English Court of Appeal, I do not think that the reasoning in the case can be correct or that it should be followed. Indeed, the reasoning highlights the circularity of the use sought to be made of the evidence. To say that the appellant Ward had "identified himself compellingly" is to beg the question entirely. Nor do I think that the evidence can be said to be "strong to establish the admission" merely because the statements reflect the date of birth of the accused and his address. Again, this assumes not only that the person who made the statements was the accused, it also assumes that the person who made the statements was not fabricating the information conveyed so as to protect himself and implicate an otherwise innocent person. I agree (as I will discuss later) that evidence of this kind may have a utility as tending towards the identification of person who made the statements but it cannot be assumed for the purposes of deciding whether it is an admission by the accused that the statements were made by the accused merely because they reflect some personal characteristics he or she may have possessed. Therein lies the circularity. Of course, in the English decision there was in addition an extra feature, namely the appellant's part-ownership of one of the cars. But as to the logic itself, I regret to say that I remain unpersuaded.
33 Subject to the fate of the later argument that Mr Ahmad had in fact identified the person present at the Lakemba premises as the accused based on a photograph he had been shown, I consider that the Crown has not otherwise established that the representations were made by the accused so as to make them admissible as admissions. Putting the matter more precisely, I am unable to conclude that it is reasonably open to find that it was the accused who made the admissions. In reaching that conclusion, I put to one side the representations themselves for the reasons I have stated. Whether the photographic "identification" is sufficient to alter the situation is a matter I will leave for further consideration after I have determined the arguments based on s 65(2)(c) of the Evidence Act.
34 The findings I have made make it strictly speaking unnecessary to consider whether, assuming it were open to find they were made by the accused, the representations may be said to be "adverse to the person's interest in the outcome of the proceeding". This definition has however been given a wide interpretation by the New South Wales Court of Criminal Appeal. It can, for example, include a lie told by an accused if it is relied upon by the Crown at trial R v Esposito (1998) 45 NSWLR 442; or an exculpatory statement R v Houghton (1998) 45 NSWLR 426. Here, where the issue is whether the accused was present at the Lakemba premises on the relevant date, it seems to me that the representations may properly be described as "adverse" in the sense that the expression appears in the Dictionary to the Evidence Act.