Styles, Megan --- "Baker v The Queen (2012) 289 ALR 614" [2012] UTasLawRw 17; (2012) 31(2) University of Tasmania Law Review 160 (2024)

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Styles, Megan --- "Baker v The Queen (2012) 289 ALR 614" [2012] UTasLawRw 17; (2012) 31(2) University of Tasmania Law Review 160

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 exceptionto the hearsay rule inrelation to the out-of-court confessional statements of a co-accused.Nevertheless, consideration of thisissue has recently arisen in the High Courtcase of Baker v The Queen^[1]where the court was asked to develop such an exception following Bannon vThe Queen,^[2] where some scope wasleft to so do. Baker now stands as the second High Court case in recentyears to refuse to allow this exception and to allow the conviction of anaccusedfor murder, despite a co-accused’s admissions. This case note willcritically examine the decision in Baker and the utility of the HighCourt’s continued refusal to allow an exception to the hearsay rule inrelation to the out-of-courtstatements of a co-accused. The broaderimplications of this decision on the right to a fair trial and the efficientadministrationof justice will be considered. Whilst at first glance thedecision in Baker may appear unjust in light of the statements made bythe co-accused, it will be argued that the reasoning of the majority in thiscase has been grounded in sound and necessary principles – principlesessential in preserving the integrity of the fact-findingprocess.

Khalid Baker and his co-accused (LM) were jointly charged and tried withmurder following an altercation at a party in Brunswick in2005. The Crownalleged that the deceased had fallen through a landing window while beingattacked by Baker and LM. It was not suggestedthat either party had intendedhis fall, but was alleged that they were criminally responsible because they hadbeen acting in concertwith the intention of inflicting really serious injury,or because one was aiding or abetting the other. Five witnesses gave twodifferent accounts. On the first version, Baker was the principal assailant. Onthe second, LM was solely responsible, with Bakerbeing restrained throughout.In a police interview and to witnesses, LM had made admissions to the effectthat he had pushed thedeceased. It was on these out-of-court statements thatthe High Court appeal ultimately centred. At trial, Whelan J had ruled thatthecirc*mstances of the case were ‘very closely analogous’ to those inBannon and that, therefore, the statements were not admissible inBaker’s trial because there was no relevant hearsay exception. WhelanJdirected the jury not to consider the statements when determining Baker’sguilt. Consequently, LM was acquitted, while Bakerwas convicted and sentencedto 17 years imprisonment. While application for leave to the Court of Appeal wasrefused, special leaveto appeal in the High Court was granted, with the mainground being that LM’s out-of-court statements had been wrongly excludedand that there should be an extension of the hearsay exceptions at commonlaw.

Two main submissions were advanced on appeal. Firstly, that Whelan J haderred in his failure to direct the jury that LM’s statementscould be usedin the exculpation of Baker. Secondly, that the Court of Appeal had erred inholding that the evidence at trial hadbeen capable of supporting a guiltyverdict. Therefore, Baker submitted, the trial had miscarried. While it wasconceded that WhelanJ had correctly applied the law as it stood, it wassubmitted that there was a necessity to modify the common law hearsayexceptions.Principally, two contentions were made. Firstly, that there be alimited hearsay exception in relation to joint trials. Secondly,it wassubmitted that there should be an exception allowing the admission ofthird-party confessional statements, in order to bringthe common law into linewith the Uniform Evidence Legislation (‘UEL’) – which allowedthe admission of first-handhearsay where a witness was‘unavailable’.^[3]Unanimously, these submissions were rejected and the appeal dismissed.

AFrench CJ, Gummow, Hayne, Crennan, Kiefel and BellJJ

The majority did not consider the issues raised in Baker to be materiallydifferent from those in Bannon, where the High Court had declined tobroaden the hearsay exceptions. The submission was therefore rejected, thatwhere the prosecutionrelied on admissions by an accused in proof of his guilt,that those statements should be admissible at the trial of the co-accusedifexculpatory of his guilt. The majority were of the view that even if a limitedexception were allowed, the statements in questionwould nevertheless remaininadmissible under such a rule. The principal basis on which the majorityrefused to extend the hearsayexceptions to LM’s statements was that therewas no reason to suggest that the statements in question were such that theywouldnot be attended to by the dangers of third-party confessions, or tohearsay more generally. They could not be said to pass any thresholdofreliability simply because, as the appellant suggested, they were against hispenal interest. In any event, the majority wereof the view that the statementswere not necessarily against LM’s penal interest, applying the testsuggested in Bannon. This test demanded consideration of:

Whether LM apprehended that it was to his prejudice to have made admissionsimplicating himself alone as opposed to having acted inconcert with or havingbeen assisted by the appellant^.[4]

It was rejected that LM had done so, given that the statements he had madedid not implicate him alone. According to the majority,his statements had beenconsistent with both versions of events given by witnesses.

The purpose of the hearsay rule as one of fairness and ensuring anopportunity for cross-examination was essential. With referenceto the commentsof Deane J in Bannon, it was noted that the present case was not one inwhich a failure to admit such statements would amount to an unfairness. Rather,Deane J’s comments suggesting such cases may arise, were directed at thosein which there was an unambiguous confession of sole guilt – thiswas not such a case. LM’s statements had not been conclusive as to thecase of the deceased’sfall. The majority noted that the Crown had notrelied upon these statements as unambiguous support for the appellant’scase,or as reliable. In an ordinary case such as this, fairness did notadvocate for the admission of such statements.

Similarly, the majority were unconvinced that legislative and judicialdevelopments since Bannon required the development of a common lawexception. References to the UEL, United Kingdom legislation and Queensland caselaw assupport for this proposition were rejected as unconvincing. Such anexception would be a significant alteration to the common law,where some stateshad consciously chosen not to adopt the UEL or to modify the hearsay rule. Themajority concluded that no miscarriageof justice had occurred.

BHeydon J

In a comparatively lengthy judgment, Heydon J referred to the suggestion thatan out-of-court statement could be admissible, evenwhere the declarant was‘alive, available and sitting in the courtroom’, asextreme.^[5] While he was at leastwilling to consider the appropriateness of an extension to the hearsay rule andconsidered the applicationof the arguments raised in Bannon, JusticeHeydon rejected that any such extension could extend to LM’s statements.In reaching this conclusion, similar linesof reasoning to the majority werefollowed, 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’spropositionssuggesting that LM’s statements could be considered reliable. Crown use ofthe statements could not be consideredas evidence of their reliability, giventhat the prosecution had a duty to call all available evidence. Further,the suggestion that LM should have objected to their use was absurd, given thatthere were no groundsin law upon which he could have done so. Finally, the factthat some statements had been made to the police could have no bearingon theirreliability, nor could the fact that some witnesses had supported them. Innoting the importance of the hearsay rule inexcluding unreliable evidence,Justice Heydon made reference to the danger of manufactured evidence in jointtrials and the riskof perjury in such cases. He also noted the importance ofcross-examining the maker of such statements, in assessing the value ofevidence. The fact-finding process required the best evidence - this wasgenerally direct evidence. LM’s statements were notreliable.

Again, it was noted that for Deane J’s suggested exception toapply,^[6] the statement in questionneeded to be unambigious. LM’s was not, nor was it exculpatory. LMhad not admitted to pushing and killing the deceased or to being solelyresponsible. Justice Heydon considered these factors alone to be sufficient indismissing the appeal.In any event, Deane J’s exception would be to allowan unfairness. Fairness in a criminal trial was to extend to all parties,notjust to a particular defendant. To allow an exception for exculpatory statementswhere they were reliable and reasonably necessaryto prove a fact in issue was‘fundamentally inconsistent’ withauthority.^[7] Nevertheless, it wasalso noted that LM could not be considered ‘unavailable’, even if anextension of the hearsay exceptionswas allowed – he was not dead.

Interestingly, it was noted that LM’s statements may actually beconsidered as inculpatory of the appellant as aider and abettor. It wasnoted that there had been no suggestion by the appellant that inculpatorystatementsshould also be subject to a new exception. The question was raised asto why if statements exculpatory to the accused were to beadmissible,inculpatory ones should not. Justice Heydon’s view was that both remaininadmissible.

Finally, Justice Heydon was also unconvinced that an extension was necessaryto bring the common law into line with the developmentssuggested – it wasunclear and complex how this could be done to reflect the UEL. The appeal shouldbe dismissed.

APrevious Jurisprudence

Baker is a decision grounded in a long-standing reluctance to permitthe admissibility of hearsay evidence or to extend the exceptionsto the hearsayrule.^[8] Nevertheless, the High Courthas not been completely adverse to any suggestion of extending the hearsay rule,noting that it shouldnot be ‘inflexiblyapplied’.^[9] Recognition hasbeen made of the fact that there may be room for admitting hearsay evidence,where it is of sufficient reliabilityso as to avoid the general dangers ofhearsay evidence.^[10] Certainly,consideration has been given to such an exception for the confessionalstatements of a co-accused in both Baker and Bannon. Simply, theHigh Court did not consider these cases to be appropriate ones in which to allowan extension. The nature of the evidencein question was not such to circumventthe dangers of hearsay. Fundamentally, as was noted by both judgments inBaker, LM’s statements would have been inadmissible even had alimited exception been allowed.

Despite this grounding in long-standing authority, the decision ofBaker has not escapedcriticism.^[11] Certainly, given thatthe appellant was convicted of murder despite his co-accused’s admissions,at first glance the outcomeof the trial may appear unjust. However, the realityis that the right to a fair trial in criminal proceedings cannot, and shouldnot, be confined to arriving at the truth only in an individualcase.^[12] In ensuring the efficientadministration of justice, the court is tasked with a continuous process, whichcannot be adjudged againstan individualcase.^[13] Exclusionary rules ofevidence operate to place fundamental, necessary, controls on admissibility.

BThe Purpose of Exclusionary Rules: Hearsay

Exclusionary rules, including the hearsay rule, have been directed atensuring that only ‘relevant, reliable and probative’evidence is put before the court.^[14]Evidence must be of a necessaryquality.^[15] The High Court inBaker has been particularly concerned with the necessity of the hearsayrule in excluding unreliable evidence, preserving the value of crossexamination, ensuring that evidence is under oath and ensuring that credibilitycan be assessed.^[16]

Not all evidence which can lead to the truth can, or should, be considered asadmissible. Exclusionary rules of evidence are directedat the power of thecourt to control its own processes. As Spigelman notes:

If the search for truth were the overriding consideration of a trial, therewould be no such rule[s]. Relevance would be the onlycriterion. Each such ruleoperates to exclude evidence which has utility for truth seekingpurposes.^[17]

Nevertheless, there may be circ*mstances ameliorating against theseproblems. It is for this reason that exclusions to the hearsayrule haveemerged.

CHearsay Exceptions: Reliable Evidence

Admissions have been permitted as an exception to the hearsay rule on thebasis that they may be considered reliable-‘what aparty says againsthimself is likely to betrue’.^[18] Traditionaldangers of hearsay evidence have been considered as overcome in this context.Additional dangers, however, arise in relationto the third party admission orconfession. For instance:

People may prevaricate, despite the consequences to themselves, to exculpatethose they love or fear, to inculpate those they hateor because they areinveterate or pathologicalliars.^[19]

As the High Court alluded to in Baker, there is a real risk of themanufacture of evidence in joint trials countering against its reliability. Thejoint criminal trial hasbeen considered as one of the ‘most difficultfacets’ in the administration ofjustice.^[20] When combined withhearsay exclusionary rules as a ‘notorious labyrinth’ andconfessional evidence as having ‘uniquedangers’,^[21] the High Courthas been correct to proceed with caution in Baker. This decision has beenmade in light of the necessity for restrictions on the admissibility of evidencein order to prevent concoction,abuse of process and the manufacture ofevidence.^[22] Where there is noopportunity to test or evaluate the strength of evidence, the court must controlits processes. While there maybe an appropriate case in which to extend thehearsay exceptions at common law, this was not such a case. LM’sstatements werenot exculpatory, unambiguous or conclusive as to hisinvolvement. The circ*mstances were not such to bring the statements in questionoutside of the general dangers of hearsay.

DMatters not Considered

Despite the author conceding that the approach taken by the court in Bakerwas both appropriate and consistent with authority, a principal criticism isfound in the failure of the High Court to go beyond Bannon in commentingon their willingness to permit any extension in an appropriate case, orto articulate what an appropriate case would be. Whilst these cases indicate arefusal or reluctance in the particular circ*mstancesto allow an extension tothe hearsay exceptions, the court had not completely shut the door for such adevelopment in a more suitablecase. The High Court was well placed to furtherexamine these issue or to make comments beyond those made in Bannon, yetthey have declined to do so.

According to Deane J,^[23] theremay be circ*mstances in which the exclusion of such statements isproductive of unfairness. Certainly, in a number of jurisdictions, suchexceptions have been allowed. In Canada, for example, the approach has been torecognize a residual or catchall exception to thehearsay rule, with a number oflimits on the operation of thisexception.^[24] The English approachhas been that if the consequences of inadmissibility are that the jury does nothear an alternative versionof events giving rise to the charge, the convictionof an accused may be unsafe and unsatisfactory and accordingly setaside.^[25] Some comment on the meritof these exceptions would have been most appropriate in Baker.Nevertheless, such a limited approach as taken by the High Court is consistentwith what often constitutes the piecemeal natureof judge-made law and awillingness of the High Court to consider only those issues that must be decidedin the case at hand.

Baker confirms a reluctance by the High Court to permit an extensionof the common law hearsay rules in relation to the admissibility ofthird partyconfessional statements. As in Bannon, the court was unwilling to permitsuch an extension, given the inappropriateness of doing so on the particularfacts. Nevertheless,given the failure of the High Court to go any further indiscussing their willingness in a more suitable case, it is now unclearwhetherthere is any room for the development of such an extension in the future. Whilsta sound decision and in-line with long standingauthority, the High Court hasdeclined to discuss any further than necessary a potential extension of thehearsay rule at commonlaw. In many ways, Baker has been a missedopportunity to either develop the law, or to clearly refuse any future extensionof the hearsay rule. Nevertheless,the nature of hearsay evidence as being‘notoriously unreliable’ advocates for a cautious approach asadopted by theHigh Court. Any appearance of injustice on the facts ofthis particular case must be viewed in light of the need for the court toprotect itsfact-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 TheQueen [1995] HCA 27; (1995) 185 CLR 1.

^[9] For example, see Walton vThe Queen [1989] HCA 9; (1989) 166 CLR 283 (Mason CJ and Deane J).

^[10] Deane J in Bannon v TheQueen [1995] HCA 27; (1995) 185 CLR 1; see also R v Benz [1989] HCA 64; (1989) 168 CLR 110 (Gaudronand McHugh JJ); J D Heydon, Cross on Evidence (LexisNexis, 2010)1086.

^[11] Bill Donoghue, The HighCourt 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, ‘TheTruth Can Cost Too Much: The Principle of a Fair Trial’ (Paper presentedat the Fourth Gerard BrennanLecture, Bond University, 25th October 2003).

^[13] Ibid.

^[14] Explanatory Memorandum,Evidence Act 1995 (Cth); see also Justice Brereton, ‘Evidence inCivil Proceedings: An Australian Perspective on Documentary and ElectronicEvidence’(Speech to the National Judges College of the SupremePeople’s Court of the People’s Republic of China, September 2007).

^[15] R v Lee (1998) 195CLR 594 at 602.

^[16] Teper v The Queen[1952] AC 480 at 486: JRS Forbes, Evidence Law in Queensland (ThomsonReuters, 2010), 91; Spigelman, above n 12.

^[17] Spigelman, above n 12.

^[18] Forbes, above n 16, 91.

^[19] People v Settles 46N.Y.2d 154; Donna Katos, ‘The Status of the Third Party Confession inVirginia: In Search of a Trustworthiness Standard’ (1980) 15 Universityof Richmond Law Review 173, 174.

^[20] Simon Buchen, EvidentiaryIssues 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 inCanada’ (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 HearsayRule and Confessions Relied upon by the Defence: R v Myers’ (1996-1997) 1International 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 thedeclarant apprehending a vulnerability to penal consequences. The vulnerabilitycannot have been remote and if upon considering the totality of the evidence itis in favour of the declarant, it will not be consideredas against hisinterest. The declarant must be unavailable due to death, insanity or graveillness: Lee Stuesser, ‘An Appealfor Guidance’ [1996] BondLawRw 6; (1996) 8(2) BondLaw Review 110.

^[25] R v Beckford [1991]Crim LR 833; See that adopted in Texas, of a three stage test: (1) A risk ofconvicting an innocent person must exist; (2) the statement mustexculpate theaccused and; (3) the declarant must have been situated so that he might havecommitted the crime: Ziff, above n 21.

^[∗] Final year BA-LLB(Hons) student at the University of Tasmania, and co-editor of the University ofTasmania Law Review for 2012.The author would like to thank Terese Henning forher helpful feedback and suggestions.

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