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Baker v The Queen (2012) 289 ALR 614
Hearsay evidence has been considered notoriously unreliable. For this reason, Australian common law has refused to allow an exception to the hearsay rule in relation to the out-of-court confessional statements of a co-accused. Nevertheless, consideration of this issue has recently arisen in the High Court case of Baker v The Queen[1] where the court was asked to develop such an exception following Bannon v The Queen,[2] where some scope was left to so do. Baker now stands as the second High Court case in recent years to refuse to allow this exception and to allow the conviction of an accused for murder, despite a co-accused’s admissions. This case note will critically examine the decision in Baker and the utility of the High Court’s continued refusal to allow an exception to the hearsay rule in relation to the out-of-court statements of a co-accused. The broader implications of this decision on the right to a fair trial and the efficient administration of justice will be considered. Whilst at first glance the decision in Baker may appear unjust in light of the statements made by the co-accused, it will be argued that the reasoning of the majority in this case has been grounded in sound and necessary principles – principles essential in preserving the integrity of the fact-finding process.
Khalid Baker and his co-accused (LM) were jointly charged and tried with murder following an altercation at a party in Brunswick in 2005. The Crown alleged that the deceased had fallen through a landing window while being attacked by Baker and LM. It was not suggested that either party had intended his fall, but was alleged that they were criminally responsible because they had been acting in concert with the intention of inflicting really serious injury, or because one was aiding or abetting the other. Five witnesses gave two different accounts. On the first version, Baker was the principal assailant. On the second, LM was solely responsible, with Baker being restrained throughout. In a police interview and to witnesses, LM had made admissions to the effect that he had pushed the deceased. It was on these out-of-court statements that the High Court appeal ultimately centred. At trial, Whelan J had ruled that the circumstances of the case were ‘very closely analogous’ to those in Bannon and that, therefore, the statements were not admissible in Baker’s trial because there was no relevant hearsay exception. Whelan J directed the jury not to consider the statements when determining Baker’s guilt. Consequently, LM was acquitted, while Baker was convicted and sentenced to 17 years imprisonment. While application for leave to the Court of Appeal was refused, special leave to appeal in the High Court was granted, with the main ground being that LM’s out-of-court statements had been wrongly excluded and that there should be an extension of the hearsay exceptions at common law.
Two main submissions were advanced on appeal. Firstly, that Whelan J had erred in his failure to direct the jury that LM’s statements could be used in the exculpation of Baker. Secondly, that the Court of Appeal had erred in holding that the evidence at trial had been capable of supporting a guilty verdict. Therefore, Baker submitted, the trial had miscarried. While it was conceded that Whelan J had correctly applied the law as it stood, it was submitted that there was a necessity to modify the common law hearsay exceptions. Principally, two contentions were made. Firstly, that there be a limited hearsay exception in relation to joint trials. Secondly, it was submitted that there should be an exception allowing the admission of third-party confessional statements, in order to bring the common law into line with the Uniform Evidence Legislation (‘UEL’) – which allowed the admission of first-hand hearsay where a witness was ‘unavailable’.[3] Unanimously, these submissions were rejected and the appeal dismissed.
The majority did not consider the issues raised in Baker to be materially different from those in Bannon, where the High Court had declined to broaden the hearsay exceptions. The submission was therefore rejected, that where the prosecution relied on admissions by an accused in proof of his guilt, that those statements should be admissible at the trial of the co-accused if exculpatory of his guilt. The majority were of the view that even if a limited exception were allowed, the statements in question would nevertheless remain inadmissible under such a rule. The principal basis on which the majority refused to extend the hearsay exceptions to LM’s statements was that there was no reason to suggest that the statements in question were such that they would not be attended to by the dangers of third-party confessions, or to hearsay more generally. They could not be said to pass any threshold of reliability simply because, as the appellant suggested, they were against his penal interest. In any event, the majority were of the view that the statements were not necessarily against LM’s penal interest, applying the test suggested in Bannon. This test demanded consideration of:
Whether LM apprehended that it was to his prejudice to have made admissions implicating himself alone as opposed to having acted in concert with or having been assisted by the appellant.[4]
It was rejected that LM had done so, given that the statements he had made did not implicate him alone. According to the majority, his statements had been consistent with both versions of events given by witnesses.
The purpose of the hearsay rule as one of fairness and ensuring an opportunity for cross-examination was essential. With reference to the comments of Deane J in Bannon, it was noted that the present case was not one in which a failure to admit such statements would amount to an unfairness. Rather, Deane J’s comments suggesting such cases may arise, were directed at those in which there was an unambiguous confession of sole guilt – this was not such a case. LM’s statements had not been conclusive as to the case of the deceased’s fall. The majority noted that the Crown had not relied upon these statements as unambiguous support for the appellant’s case, or as reliable. In an ordinary case such as this, fairness did not advocate for the admission of such statements.
Similarly, the majority were unconvinced that legislative and judicial developments since Bannon required the development of a common law exception. References to the UEL, United Kingdom legislation and Queensland case law as support for this proposition were rejected as unconvincing. Such an exception would be a significant alteration to the common law, where some states had consciously chosen not to adopt the UEL or to modify the hearsay rule. The majority concluded that no miscarriage of justice had occurred.
In a comparatively lengthy judgment, Heydon J referred to the suggestion that an out-of-court statement could be admissible, even where the declarant was ‘alive, available and sitting in the courtroom’, as extreme.[5] While he was at least willing to consider the appropriateness of an extension to the hearsay rule and considered the application of the arguments raised in Bannon, Justice Heydon rejected that any such extension could extend to LM’s statements. In reaching this conclusion, similar lines of reasoning to the majority were followed, rejecting any inherent reliability of the statements in question.
In considering the purpose of the hearsay rule as of ensuring reliability, Justice Heydon rejected a number of the appellant’s propositions suggesting that LM’s statements could be considered reliable. Crown use of the statements could not be considered as evidence of their reliability, given that the prosecution had a duty to call all available evidence. Further, the suggestion that LM should have objected to their use was absurd, given that there were no grounds in law upon which he could have done so. Finally, the fact that some statements had been made to the police could have no bearing on their reliability, nor could the fact that some witnesses had supported them. In noting the importance of the hearsay rule in excluding unreliable evidence, Justice Heydon made reference to the danger of manufactured evidence in joint trials and the risk of perjury in such cases. He also noted the importance of cross-examining the maker of such statements, in assessing the value of evidence. The fact-finding process required the best evidence - this was generally direct evidence. LM’s statements were not reliable.
Again, it was noted that for Deane J’s suggested exception to apply,[6] the statement in question needed to be unambigious. LM’s was not, nor was it exculpatory. LM had not admitted to pushing and killing the deceased or to being solely responsible. Justice Heydon considered these factors alone to be sufficient in dismissing the appeal. In any event, Deane J’s exception would be to allow an unfairness. Fairness in a criminal trial was to extend to all parties, not just to a particular defendant. To allow an exception for exculpatory statements where they were reliable and reasonably necessary to prove a fact in issue was ‘fundamentally inconsistent’ with authority.[7] Nevertheless, it was also noted that LM could not be considered ‘unavailable’, even if an extension of the hearsay exceptions was allowed – he was not dead.
Interestingly, it was noted that LM’s statements may actually be considered as inculpatory of the appellant as aider and abettor. It was noted that there had been no suggestion by the appellant that inculpatory statements should also be subject to a new exception. The question was raised as to why if statements exculpatory to the accused were to be admissible, inculpatory ones should not. Justice Heydon’s view was that both remain inadmissible.
Finally, Justice Heydon was also unconvinced that an extension was necessary to bring the common law into line with the developments suggested – it was unclear and complex how this could be done to reflect the UEL. The appeal should be dismissed.
Baker is a decision grounded in a long-standing reluctance to permit the admissibility of hearsay evidence or to extend the exceptions to the hearsay rule.[8] Nevertheless, the High Court has not been completely adverse to any suggestion of extending the hearsay rule, noting that it should not be ‘inflexibly applied’.[9] Recognition has been made of the fact that there may be room for admitting hearsay evidence, where it is of sufficient reliability so as to avoid the general dangers of hearsay evidence.[10] Certainly, consideration has been given to such an exception for the confessional statements of a co-accused in both Baker and Bannon. Simply, the High Court did not consider these cases to be appropriate ones in which to allow an extension. The nature of the evidence in question was not such to circumvent the dangers of hearsay. Fundamentally, as was noted by both judgments in Baker, LM’s statements would have been inadmissible even had a limited exception been allowed.
Despite this grounding in long-standing authority, the decision of Baker has not escaped criticism.[11] Certainly, given that the appellant was convicted of murder despite his co-accused’s admissions, at first glance the outcome of the trial may appear unjust. However, the reality is that the right to a fair trial in criminal proceedings cannot, and should not, be confined to arriving at the truth only in an individual case.[12] In ensuring the efficient administration of justice, the court is tasked with a continuous process, which cannot be adjudged against an individual case.[13] Exclusionary rules of evidence operate to place fundamental, necessary, controls on admissibility.
Exclusionary rules, including the hearsay rule, have been directed at ensuring that only ‘relevant, reliable and probative’ evidence is put before the court.[14] Evidence must be of a necessary quality.[15] The High Court in Baker has been particularly concerned with the necessity of the hearsay rule in excluding unreliable evidence, preserving the value of cross examination, ensuring that evidence is under oath and ensuring that credibility can be assessed.[16]
Not all evidence which can lead to the truth can, or should, be considered as admissible. Exclusionary rules of evidence are directed at the power of the court to control its own processes. As Spigelman notes:
If the search for truth were the overriding consideration of a trial, there would be no such rule[s]. Relevance would be the only criterion. Each such rule operates to exclude evidence which has utility for truth seeking purposes.[17]
Nevertheless, there may be circumstances ameliorating against these problems. It is for this reason that exclusions to the hearsay rule have emerged.
Admissions have been permitted as an exception to the hearsay rule on the basis that they may be considered reliable-‘what a party says against himself is likely to be true’.[18] Traditional dangers of hearsay evidence have been considered as overcome in this context. Additional dangers, however, arise in relation to the third party admission or confession. For instance:
People may prevaricate, despite the consequences to themselves, to exculpate those they love or fear, to inculpate those they hate or because they are inveterate or pathological liars.[19]
As the High Court alluded to in Baker, there is a real risk of the manufacture of evidence in joint trials countering against its reliability. The joint criminal trial has been considered as one of the ‘most difficult facets’ in the administration of justice.[20] When combined with hearsay exclusionary rules as a ‘notorious labyrinth’ and confessional evidence as having ‘unique dangers’,[21] the High Court has been correct to proceed with caution in Baker. This decision has been made in light of the necessity for restrictions on the admissibility of evidence in order to prevent concoction, abuse of process and the manufacture of evidence.[22] Where there is no opportunity to test or evaluate the strength of evidence, the court must control its processes. While there may be an appropriate case in which to extend the hearsay exceptions at common law, this was not such a case. LM’s statements were not exculpatory, unambiguous or conclusive as to his involvement. The circumstances were not such to bring the statements in question outside of the general dangers of hearsay.
Despite the author conceding that the approach taken by the court in Baker was both appropriate and consistent with authority, a principal criticism is found in the failure of the High Court to go beyond Bannon in commenting on their willingness to permit any extension in an appropriate case, or to articulate what an appropriate case would be. Whilst these cases indicate a refusal or reluctance in the particular circumstances to allow an extension to the hearsay exceptions, the court had not completely shut the door for such a development in a more suitable case. The High Court was well placed to further examine these issue or to make comments beyond those made in Bannon, yet they have declined to do so.
According to Deane J,[23] there may be circumstances in which the exclusion of such statements is productive of unfairness. Certainly, in a number of jurisdictions, such exceptions have been allowed. In Canada, for example, the approach has been to recognize a residual or catchall exception to the hearsay rule, with a number of limits on the operation of this exception.[24] The English approach has been that if the consequences of inadmissibility are that the jury does not hear an alternative version of events giving rise to the charge, the conviction of an accused may be unsafe and unsatisfactory and accordingly set aside.[25] Some comment on the merit of these exceptions would have been most appropriate in Baker. Nevertheless, such a limited approach as taken by the High Court is consistent with what often constitutes the piecemeal nature of judge-made law and a willingness of the High Court to consider only those issues that must be decided in the case at hand.
Baker confirms a reluctance by the High Court to permit an extension of the common law hearsay rules in relation to the admissibility of third party confessional statements. As in Bannon, the court was unwilling to permit such an extension, given the inappropriateness of doing so on the particular facts. Nevertheless, given the failure of the High Court to go any further in discussing their willingness in a more suitable case, it is now unclear whether there is any room for the development of such an extension in the future. Whilst a sound decision and in-line with long standing authority, the High Court has declined to discuss any further than necessary a potential extension of the hearsay rule at common law. In many ways, Baker has been a missed opportunity to either develop the law, or to clearly refuse any future extension of the hearsay rule. Nevertheless, the nature of hearsay evidence as being ‘notoriously unreliable’ advocates for a cautious approach as adopted by the High Court. Any appearance of injustice on the facts of this particular case must be viewed in light of the need for the court to protect its fact-finding processes more broadly.
Megan Styles[∗]
[1] Baker v The Queen (2012) 289 ALR 614 (‘Baker’).
[2] Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 (‘Bannon’).
[3] See s 65(8) Evidence Act 2008 (Vic), s 83 Evidence Act 2008 (Vic); at trial, The Act was not yet in force.
[4] Baker [624].
[5] Ibid [629].
[6] Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1.
[7] Baker [634].
[8] See also Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1.
[9] For example, see Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 (Mason CJ and Deane J).
[10] Deane J in Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1; see also R v Benz [1989] HCA 64; (1989) 168 CLR 110 (Gaudron and McHugh JJ); J D Heydon, Cross on Evidence (LexisNexis, 2010) 1086.
[11] Bill Donoghue, The High Court Appeal Dismissal That Didn’t Make The News on August 15th 2012 (2012) <http://melbournecriminallawyersblog.com/2012/08/16/the-high-court-appeal-dismissal-that-didnt-make-the-news-on-august-15th-2012/> .
[12] Spigelman J, ‘The Truth Can Cost Too Much: The Principle of a Fair Trial’ (Paper presented at the Fourth Gerard Brennan Lecture, Bond University, 25th October 2003).
[13] Ibid.
[14] Explanatory Memorandum, Evidence Act 1995 (Cth); see also Justice Brereton, ‘Evidence in Civil Proceedings: An Australian Perspective on Documentary and Electronic Evidence’ (Speech to the National Judges College of the Supreme People’s Court of the People’s Republic of China, September 2007).
[15] R v Lee (1998) 195 CLR 594 at 602.
[16] Teper v The Queen [1952] AC 480 at 486: JRS Forbes, Evidence Law in Queensland (Thomson Reuters, 2010), 91; Spigelman, above n 12.
[17] Spigelman, above n 12.
[18] Forbes, above n 16, 91.
[19] People v Settles 46 N.Y.2d 154; Donna Katos, ‘The Status of the Third Party Confession in Virginia: In Search of a Trustworthiness Standard’ (1980) 15 University of Richmond Law Review 173, 174.
[20] Simon Buchen, Evidentiary Issues Arising in Joint Criminal Trials (n.d) <http://www.criminalcle.net.au/attachments/Evidentiary_Issues_arising_in_Joint_Criminal_Trials.pdf> .
[21] Bruce Ziff, ‘Statements against Penal Interest: A New Exception to the Hearsay Rule in Canada’ (1979) 11 Ottawa Law Review 163; Michael Hor, ‘Co-accused confessions: The Third Anniversary’ (1996) 8(2) Singapore Academy of Law Journal, 323; Andrew Choo, ‘The Hearsay Rule and Confessions Relied upon by the Defence: R v Myers’ (1996-1997) 1 International Journal of Evidence and Proof 158.
[22] Choo, above n 21.
[23] Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1.
[24] See R v O’Brien (1977) 76 DLR (3d) 513; Canada requires that a declaration be made with the declarant apprehending a vulnerability to penal consequences. The vulnerability cannot have been remote and if upon considering the totality of the evidence it is in favour of the declarant, it will not be considered as against his interest. The declarant must be unavailable due to death, insanity or grave illness: Lee Stuesser, ‘An Appeal for Guidance’ [1996] BondLawRw 6; (1996) 8(2) Bond Law Review 110.
[25] R v Beckford [1991] Crim LR 833; See that adopted in Texas, of a three stage test: (1) A risk of convicting an innocent person must exist; (2) the statement must exculpate the accused and; (3) the declarant must have been situated so that he might have committed the crime: Ziff, above n 21.
[∗] Final year BA-LLB (Hons) student at the University of Tasmania, and co-editor of the University of Tasmania Law Review for 2012. The author would like to thank Terese Henning for her helpful feedback and suggestions.
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