Baker v R

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Hayne,Crennan,Kiefel,Bell JJ
• Judgment Date: 15 August 2012
• Neutral Citation: 2012-0815 HCA B,[2012] HCA 27
• Court: High Court
• Docket Number: M154/2011
• Date: 15 August 2012

[2012] HCA 27

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Haydon, Crennan, Kiefel and Bell JJ

M154/2011

Khalid Baker

Appellant

and

The Queen

Respondents

Representation

M J Croucher SC with L C Carter for the appellant (instructed by Doogue & O'Brien)

G J C Silbert SC with B L Sonnet for the respondent (instructed by Solicitor for Public Prosecutions (Vic))

Baker v The Queen

Criminal law — Evidence — Common law — Hearsay — Admissions — Appellant and co-accused jointly tried for murder — Appellant convicted; co-accused acquitted — Co-accused made certain admissions in police interview and to witnesses (‘out-of-court confessional statements’) — Consideration of Bannon v The Queen (1995) 185 CLR 1 — Whether out-of-court confessional statements were admissible in exculpation of appellant as exception to hearsay rule.

Words and phrases — ‘admissions’, ‘against penal interest’, ‘hearsay rule’, ‘out-of-court confessional statements’.

ORDER

Appeal dismissed.

1 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ On 26 March 2008, the appellant and a juvenile, LM, were arraigned in the Supreme Court of Victoria (Whelan J) on a presentment charging them jointly with the murder of a young man named Albert Snowball. On Sunday 27 November 2005, the deceased was at a party on the first floor of a converted warehouse in Brunswick. At around 3am, an altercation took place on the landing of the stairwell just outside the party. In the course of the altercation, the deceased crashed through a window and fell 5.4 metres to the ground. He died two days later as the result of the injuries he sustained in the fall.

2 It was the Crown case that at the time of his fall the deceased was being attacked by the appellant and LM. The precise circumstances of the fall were not known. A push or punch might have projected him through the window, or the window may have shattered as he backed away from the fury of the attack. On either view, the act or acts of the appellant and LM in attacking the deceased were capable of being the legal cause of his death 1. It was not alleged that the appellant or LM intended that the deceased should go through the window. On the Crown case, each was liable for his murder because they were acting in concert with the intention of inflicting really serious injury or because one was aiding and abetting the other knowing the other was assaulting the deceased with that intention.

3 A number of witnesses described the events on the landing leading up to the deceased's fall. There were two inconsistent versions. On the first version, the appellant was the principal assailant. On the second version, the appellant was restrained throughout the fight by a bystander and LM was the sole assailant.

4 The appellant made no admissions as to any involvement in the incident. Neither he nor LM gave or called evidence at the trial.

5 LM participated in an interview with the police in which he made admissions which included that he had pushed the deceased. LM also made statements to witnesses in the immediate aftermath of the incident which were capable of being viewed as an admission of responsibility for the deceased's fall.

The course of the trial and the procedural history

6 At the date of the trial, the common law governed the admissibility of LM's statements in the appellant's case 2. Subject to recognised exceptions, the rule against hearsay precludes the admission of out-of-court statements as evidence of the fact asserted in the statement 3. In Bannon v The Queen, it was acknowledged that the common law of Australia has not to date recognised an exception for the out-of-court confessional statements of a co-accused or a third party from the operation of the rule 4.

7 At the conclusion of the evidence, the trial judge raised with counsel the content of the directions to be given to the jury in the trial of the appellant with respect to LM's statements. His Honour observed that the circumstances of the joint trial were ‘very closely analogous’ to those considered in Bannon. Counsel for the appellant submitted that there was a clear distinction between the two cases and that fairness required that the jury be permitted to take into account LM's admissions in considering whether the Crown had established his client's guilt.

8 Whelan J ruled that LM's out-of-court statements were not admissible in the appellant's trial, observing that ‘there is at present no exception to the hearsay rule which would render [LM's] admissions admissible in [the appellant's] trial.’

9 Notwithstanding the ruling, and it would seem without objection, the appellant's counsel told the jury that he was precluded from addressing them on LM's admission to the police that ‘I pushed him’.

10 Whelan J directed the jury in conventional terms that:

‘The evidence concerning admissions by [LM] is only evidence in his case, it is not evidence in [the appellant's] case. So when you separately consider [the appellant's] case, you ignore the admissions allegedly made by [LM], they are not evidence in [the appellant's] case.’

11 The jury returned verdicts acquitting LM outright and convicting the appellant of the murder of the deceased.

12 The appellant applied for leave to appeal against his conviction to the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Buchanan and Bongiorno JJA). The grounds of appeal included a contention that LM's out-of-court statements had been wrongly excluded. On the hearing of the application in the Court of Appeal, that ground was not pressed. The application was argued on the sole ground that the verdict was unreasonable and could not be supported having regard to the evidence 5. The Court of Appeal considered there was no substance to this ground and the application for leave to appeal was refused 6.

13 The appellant applied for special leave to appeal on the ground not pressed in the Court of Appeal: that LM's out-of-court statements had been wrongly excluded. The appellant submitted that his failure to preserve the point below should not preclude the grant of special leave in circumstances in which the Court of Appeal was bound to uphold Whelan J's ruling. He submitted that LM's admissions met the requirements of reliability and prejudice that the joint reasons in Bannon suggest are a prerequisite to the consideration of any extension of the exceptions to the hearsay rule. In the circumstances, special leave to appeal was granted. Nonetheless, the proper course was for the appellant to have maintained his ground of challenge in the Court of Appeal. This Court would have had the benefit of that Court's analysis of the issues that are said to be presented. Contrary to the appellant's submissions, LM's statements when assessed in the context of the Crown case do not present issues materially different from those considered in Bannon. The exclusion of LM's out-of-court statements in the appellant's trial did not occasion a miscarriage of justice. For the reasons to be given, the appeal should be dismissed.

14 It is convenient at this juncture to refer to the evidence given at the joint trial and the contents of LM's statements in some detail.

The evidence

15 On the evening of Saturday 26 November 2005, around 100 to 200 people attended the warehouse party. A band was to perform at the party. LM attended the party with a view to ‘free-styling’ with the band. LM travelled to the party in a car with several other persons. The group included the appellant, Ali Faulkner and Lado Morgan.

16 The atmosphere at the party was described as being good until around 3am. At that time, two persons, who it was open to find were the appellant and Faulkner, commenced an apparently random and unprovoked assault on the party-goers. On the Crown case, LM joined in the violence.

17 Neither the appellant nor LM put in issue his presence at the party at the time the violence commenced or on the landing in the period before the deceased's fall. There were a number of people on the landing at that time. Common to the accounts of all of the witnesses was that a fight was taking place on the landing at the time the window shattered. As may be expected, the accounts of the witnesses of this violent and fast-moving incident varied considerably.

18 The appellant, LM and Morgan are all of African origin. The deceased was Caucasian. A number of witnesses described the appellant by reference to his wide, or big, eyes, muscly body, and headband described as a ‘do-rag’. Several said he was bare chested at the time of the fight on the landing. Morgan is tall. His hair was styled in ‘corn rows’. Faulkner does not appear to be of African origin. He was described as being of Arabic or Lebanese appearance.

19 The following account of the evidence is taken from the judgment of the Court of Appeal supplemented by reference to the summary of evidence, which forms part of the appeal papers.

20 The appellant, Faulkner and, on the Crown case, LM exhibited a high degree of aggression over several minutes inside the room in which the party was held. Party-goers, including women, were punched and struck with bottles. The appellant, Faulkner and LM then left the party through a doorway which opened onto a landing on the stairwell.

21 On the first version of events, given by Asher Doig, Peter Arcaro, Earl Stuart and Patricia Brady, it was open to find that the appellant was the principal assailant. On the second version, given by Nassir Asfer, Eric Masonga and, to some extent, Morgan, it was open to find that LM was the sole assailant.

22 Doig was on the landing. He saw five or six black men come out onto it from the party. They were behaving ‘very aggressively’. They started pushing the deceased. At least two instigated the assault on him. The appellant was the main instigator. The...