R v Benz [1989] HCA 64; 168 CLR 110 (14 December 1989)

HIGH COURT OF AUSTRALIA

THE QUEEN v. KAREN ANNE BENZ AND ANOR
F.C. 89/058

High Court of Australia
Mason C.J.(1), Deane(2), Dawson(3), Gaudron(4) and McHugh(4) JJ.

CATCHWORDS

HEARING

Canberra
14:12:1989

DECISION

MASON C.J. The facts of this application have been set out in the reasons for judgment prepared by Dawson J.

2. It has been said that this Court will grant special leave to the Crown to appeal only in very exceptional circumstances: R. v. Lee [1950] HCA 25; (1950) 82 CLR 133, at p 138; see also R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, at pp 516-517. But an appeal from a judgment of acquittal by a Court of Criminal Appeal is not to be equated with an appeal from a verdict of acquittal by a jury: R. v. Weaver [1931] HCA 23; (1931) 45 CLR 321, at p 333. The latter, unlike the former, is not sacrosanct. As Evatt J. pointed out in Weaver (at p 356):
"The verdict of acquittal entered by the
Supreme Court as a Court of Criminal Appeal,
whatever it may be in point of form, differs
greatly in substance from an original verdict
of a jury ..."
of acquittal after conviction by a jury, so long as the case or the question is of sufficient public importance to warrant the attention of the court: in England (see R. v. Ball (1911) AC 47; Reg. v. Merriman (1973) AC 584; Reg. v. Hollinshead (1985) AC 975); in Canada (see Reg. v. Borg (1969) SCR. 551, at pp 563-564; Reg. v. Caouette (1973) SCR. 859); and in the United States (see Forman v. United States [1960] USSC 20; (1960) 361 US 416, at p 426; United States v. Wilson [1975] USSC 40; (1975) 420 US 332, at pp 342-345; and the cases cited in Davern v. Messel [1984] HCA 34; (1984) 155 CLR 21, at p 60). The Judicial Committee of the Privy Council has adopted the same approach: Reg. v. Bertrand [1867] EngR 20; (1867) LR 1 PC 520; Reg. v. Coote [1873] EngR 4; (1873) LR 4 PC 599; Attorney-General for Ceylon v. Kumarasinghege Don John Perera (1953) AC 200, at p 203. In Bertrand, Sir John Coleridge, in delivering the advice of the Board, said (at p 530):

"(I)t is ... on all proper occasions, the
duty, of the Queen in Council to exercise an
appellate jurisdiction, with a view not only
to ensure, so far as may be, the due
administration of justice in the individual
case, but also to preserve the due course of
procedure generally."

3. Friedland, Double Jeopardy, (1969), explains (at p 293) the different treatment by appellate courts of the acquittal by a jury and the acquittal by a Court of Criminal Appeal after conviction by a jury in this way:

"It was the accused, who had been convicted
at trial, who was responsible for bringing
the case into the appellate courts. Whereas
there is an easily-seen division between
trial and appeal, the distinction between an
appeal and an appeal from an appeal is less
clear. Once the case is in the appellate
hierarchy there is no logical reason why the
matter should not be determined - assuming
that the point involved is of sufficient
importance to warrant the attention of the
Court - by the very highest tribunal. There
can be no surprise or unfairness; the accused
simply takes the appellate structure as he
finds it. If the House of Lords agrees with
the Court of Criminal Appeal then the accused
has no complaint; if it disagrees, then the
accused is simply back in at least as good
a position as he was before invoking the
appellate process."

In Davern v. Messel (at p 60) Brennan J. and I referred to Friedland's comment with approval, after calling attention (at p 59) to the observations of the majority in United States v. Wilson (at p 345) in these terms:

"Although review of any ruling of law
discharging a defendant obviously enhances
the likelihood of conviction and subjects
him to continuing expense and anxiety, a
defendant has no legitimate claim to benefit
from an error of law when that error could be
corrected without subjecting him to a second
trial before a second trier of fact."

Gibbs C.J. (with whom Wilson and Dawson JJ. agreed) also drew a clear distinction between acquittal by a jury and acquittal by a Court of Criminal Appeal: see at pp 34-40. Brennan J. and I stated further (at p 60), in conformity with the comments already quoted from Bertrand:

"The exercise, on proper occasions, of the
further appellate jurisdiction is important
to ensure the due administration of justice
in the individual case as well as for the
general administration of the criminal law
..."

4. Although this Court is reluctant to grant special leave to appeal to the Crown against a judgment of acquittal, the Court has an abiding responsibility to declare the common law for Australia and to ensure that it pursues its true course: Reg. v. Darby [1982] HCA 32; (1982) 148 CLR 668, at p 671. This Court cannot allow an error of principle on the part of a Court of Criminal Appeal, especially in the law of evidence, to remain uncorrected. To do so might only serve to perpetuate that error and allow it to become a source of further error. Inevitably the decision of the Court of Criminal Appeal, unless reversed, would be applied at first instance. Furthermore, the doctrine of stare decisis might result in the Court of Criminal Appeal declining in the future to reconsider its decision upon the point. It follows that a failure by this Court to grant special leave to appeal to rectify such an error of principle would necessarily have adverse and serious consequences for the administration of the criminal law generally, quite apart from any consequences that it may have for the administration of justice in the particular case. As always, and perhaps today even more so, the public importance of ensuring that the administration of criminal justice accords with sound principle and regular procedures is so manifest that the correction of an error of principle on the part of a Court of Criminal Appeal calls for the grant of special leave to the Crown in the absence of circumstances pointing to the inappropriateness of such a grant. The grant of special leave in this situation will achieve "a truer balance between the protection of the defendant as the weaker party in a criminal case and the interests of society in ensuring the due administration of the law", to borrow the words of Brennan J. and myself in Davern v. Messel (at p 59) and apply them in a slightly different context.

5. Mr Sturgess Q.C. for the Crown submits that this case presents an important question of principle, not so far resolved by authority, which requires correct determination, not only to ensure proper administration of the criminal law in future cases, but also to ensure proper administration of the criminal law as between the Crown and the respondent Murray. Otherwise a critical part of the evidence of the witness Saunders which was ruled inadmissible by the Court of Criminal Appeal will not be admissible on the new trial of Mrs Murray that is to take place pursuant to the orders made by that Court, even if the Crown does not succeed in its endeavour to have the convictions restored.

6. The point of principle which, in my view, warrants the grant of special leave arises from the rejection by the Court of Criminal Appeal of Mr Saunders' evidence of the statement by the younger woman on the bridge, "It's all right, my mother's just feeling sick", on the ground that the evidence was hearsay. Their Honours concluded that, notwithstanding that the evidence was led by the Crown without objection, it should have been excluded. Their Honours considered that it was inadmissible as against Mrs Murray and only admissible against the respondent Benz if there was evidence that she made the statement. On the footing that the statement should be excluded, the verdict against Miss Benz was unsafe and unsatisfactory. It was therefore set aside and a verdict of acquittal entered. As there was other evidence against Mrs Murray a new trial was ordered. The Court of Criminal Appeal also considered that Mr Saunders' evidence was evidence of identification which should have attracted a direction from the trial judge containing the appropriate warnings in relation to identification.

7. Discussion of the admissibility of the statement made by the younger woman is complicated to some extent by the absence of any record at the trial of the use which, on the Crown case, the jury should make of the statement. As counsel for the accused did not object to the evidence when led, the Crown did not indicate the purpose it was intended to serve. Nor does the trial judge's summing up identify the ground upon which the evidence was admitted; the summing up contained no specific direction as to the use to which the evidence could be put. Indeed, the respondents' notices of appeal to the Court of Criminal Appeal did not explicitly challenge the reception of the statement into evidence, though the matter was debated in the course of a challenge to the convictions on the ground that they were unsafe and unsatisfactory. In the Court of Criminal Appeal it was not altogether clear what ground was assigned by the Crown for the reception of the evidence of the statement. In the result, neither the trial judge nor the Court of Criminal Appeal received the assistance from counsel that they were entitled to expect. Even in this Court there was an air of vagueness about the Crown case. Certainly Mr Sturgess contended that the statement was admissible as part of the res gestae. However, he submitted that there were other bases for receiving the evidence without identifying them precisely.

8. It seems to me that the statement was relevant and admissible and that it did not infringe the hearsay rule. The statement was made on the bridge from which the deceased's body had just been dumped into the river. I say "had just been dumped" because it stands to reason that the perpetrators of a criminal offence would decamp from the scene of the crime as quickly as possible. That the two women whom Mr Saunders encountered on the bridge, assuming his evidence to have been accepted by the jury, were the perpetrators of a criminal offence is a matter of irresistible inference. According to Mr Saunders, when he first noticed them in the headlights of his car, the two women were standing fairly close together, between 12 to 18 inches apart, slightly hunched, facing over the edge of the bridge towards the water in the direction in which the body was later found. Mr Saunders saw a vehicle parked at the end of the bridge ahead of him on a grass verge. He described the car as a Laser or Pulsar type hatchback and said that the passenger side doors and back hatch were open. He stated that the vehicle seemed to be blue in colour. On these facts the jury would have been entirely justified in concluding that the body had been conveyed to the bridge in that car by the two women observed by Mr Saunders. The remoteness of the location, the hour (shortly after 3.00 a.m.), the position of the women on the bridge and the presence of the vehicle on the verge, with the back hatch open, all combine to make it improbable in the extreme that the women on the bridge had not been engaged in dumping the deceased's body in the river. If the explanation offered in the statement for the presence of the two women on the bridge was regarded by the jury as implausible, it supported the inference that the two women were engaged in a criminal offence.

9. Accordingly, the statement must be considered as one which was made by a person who was engaged in the enterprise of disposing of the body of the man who had been murdered. And it was a statement made at the scene of the enterprise, at or immediately after its completion, revealing the relationship of the speaker to the other woman. The existence of that relationship between the two women on the bridge was a matter relevant to the Crown case because, along with other evidence, it tended to suggest that the two women on the bridge were the respondents, since they also stood in a mother-daughter relationship.

10. Once it is accepted that the statement was relevant, it was admissible, unless excluded by the hearsay rule. The precise scope of the hearsay rule in all its aspects is by no means clear: see Walton v. The Queen [1989] HCA 9; (1989) 166 CLR 283. But there is authority, in the House of Lords, for the proposition that statements acknowledging paternity do not come within the scope of the hearsay rule: Lloyd v. Powell Duffryn Steam Coal Company Limited (1914) AC 733. I acknowledge that the speeches in that case do not enunciate an agreed basis for that conclusion, perhaps because the paternity of the child seems to have been conceded at the hearing of the appeal: see at p 736. Nonetheless, it is apparent that the House of Lords, having held that the statements were not declarations against interest, considered that they were not affected by the hearsay rule. That conclusion accorded with the earlier decision of the House of Lords in the case of The Aylesford Peerage (1885) 11 App Cas 1.

11. Two strands of thinking emerge from their Lordships' reasons. First, there was the view that statements acknowledging paternity, as well as acts pointing to paternity evidenced the belief of the parents as to the paternity of the child. In the words of Lord Atkinson, the significance of the statements "consists in the improbability that any man would make these statements, true or false, unless he believed himself to be the father of the child": at p 741. Secondly, there was the view that in questions of status, the statements were part of the res gestae: per Lord Shaw of Dunfermline at p 748. Lord Moulton (at p 752) appears to have embraced both views, thus regarding the statements as evidencing the belief of the speaker, and suggesting that the evidence was admissible because it was part of the res gestae.

12. Although acknowledgments of paternity stand in a special position, there is no reason for restricting the decision in Lloyd to issues of paternity. In principle the decision is capable of applying to statements affirming the relationship of parent and child made by either party to that relationship. Such a statement evidences the belief of the speaker that the relationship exists, so long at least as the statement is not made in such circumstances as to indicate that it may not express the genuine belief of the speaker. As a matter of everyday life people behave and speak in a way that reflects their beliefs as to their relationships with other persons. Our experience of human affairs shows that these expressions of belief are, generally speaking, reliable, at least in the case of close relationships such as parent and child, brother and sister. There is, accordingly, a strong foundation for receiving utterances reflecting the speaker's belief in his or her close relationship with another as evidence of that relationship and for regarding the admission of that evidence as standing outside the operation of the hearsay rule.

13. Furthermore, the statement of the younger woman formed part of the res gestae. On this footing also the statement stood outside the hearsay rule. I acknowledge the force of the criticisms made of the doctrine of res gestae, perhaps best expressed by Morgan, "A Suggested Classification of Utterances Admissible as Res Gestae", (1922) 31 Yale Law Journal 229, in these terms:

"The marvelous capacity of a Latin phrase
to serve as a substitute for reasoning, and
the confusion of thought inevitably accompanying
the use of inaccurate terminology, are nowhere
better illustrated than in the decisions dealing
with the admissibility of evidence as 'res gestae'."
(at p 229)

But the doctrine is well established in the common law in its application to the hearsay rule and the statement by the younger woman falls within the doctrine. There is perhaps some novelty in the character of the statement in that it bears upon the relationship between the perpetrators of a criminal offence. However, this factor is not a reason for excluding it from the operation of the res gestae rule.

14. The fact that the doctrine has been much criticized does not entail the conclusion that it has generated decisions that are incorrect. On the contrary, the criticism most often voiced, of which the passage already quoted is an example, is that the doctrine lacks a thereotical and principled foundation. In this respect it may require re-examination on some appropriate occasion, just as the hearsay rule itself with its many exceptions, also invites re-examination: see Walton v. The Queen.

15. However, the statement in the present case, though hearsay because it involved an implied assertion about the speaker's relationship with her mother, was in that respect evidence which appeared to be reliable. It was a spontaneous utterance, made in response to the sudden and unexpected arrival of a stranger upon the scene, an event which must have taken the younger woman by surprise. Her response in this situation should be treated as trustworthy and reliable, there being nothing to suggest otherwise, except to the extent that the assertion that the other woman was sick may on one view be taken to have been an invention to explain the presence of the two women on the bridge and the failure of the other woman to move from her position at the edge of the bridge. But the truth or falsity of that assertion, itself not in issue, provides no reason for thinking that the description given of the other woman was also invented.

16. The Court of Criminal Appeal seems to have taken the view that the statement was admissible against Miss Benz only, and then only if there was evidence establishing that she was one of the two women on the bridge. As their Honours considered that there was no evidence identifying the respondents as the two women on the bridge, they held that the statement was not admissible against either of them. Mr Sturgess contended that the evidence of Mr Saunders in its entirety tended to prove that the respondents were the actual offenders. I agree that this was the effect of Mr Saunders' evidence, certainly when it was taken in conjunction with other evidence led by the Crown. In this respect Mr Saunders' evidence as to the vehicle parked on the verge, which he described as a blue Laser or Pulsar hatchback, was particularly significant. The discovery of the blue Laser hatchback, which Mrs Murray usually drove, on fire in a rural area at about 5.20 a.m., with its numberplates missing, along with her false explanation of the use of the utility at about 4.30 a.m., together with the evidence about the carpet, was probative of her complicity in the killing and her presence on the bridge. The evidence in its totality, if accepted, invited a finding that she was a party to the killing, the transportation of the body in the Laser to the bridge where it was dumped in the river and the subsequent incineration of the vehicle. In these circumstances it was open to the jury to use Mr Saunders' evidence to identify the two women on the bridge as the respondents.

17. I do not agree that it was an essential preliminary to the jury's use of that evidence for that purpose that the jury should first have found that the two women on the bridge had just killed the deceased and were in the act of disposing of the body when Mr Saunders initially saw them. But on any view the jury would not have used the evidence for the purpose stated unless they had concluded that the women on the bridge disposed of the deceased's body in the river, a conclusion that was, in the light of the evidence, irresistible. In this situation, the absence of a direction by the trial judge that the statement could not be used for the purpose of identifying the respondents with the women on the bridge unless the jury first found that the two women had just killed the deceased and disposed of his body is quite immaterial.

18. True it is that the trial judge should have given the jury more detailed instructions in determining how they should resolve the case, including the use to which they could put the evidence. But counsel for the respondents did not seek specific directions at the conclusion of the summing up and I see no reason why this Court should now conclude that there has been any miscarriage of justice, absent a request at the trial for appropriate directions.

19. There remains for consideration the Court of Criminal Appeal's conclusion that Mr Saunders' evidence called for an appropriate warning about identification evidence. I agree, for the reasons given by Dawson J., that Mr Saunders' evidence was not evidence of identification of the respondents of the kind that calls for the usual warning. Although, in accordance with what I have already said, I consider that the trial judge might have given the jury more assistance in how they should deal with Mr Saunders' evidence, the Court of Criminal Appeal was in error in holding that the usual warning should have been given. In any case, if a warning was desirable as a matter of discretion, it was not sought at the trial.

20. In the result I would grant special leave to appeal, allow the appeal and remit the case to the Court of Criminal Appeal to enable it to consider the matters identified by Dawson J. in his reasons for judgment.

DEANE J. In R. v. Lee [1950] HCA 25; (1950) 82 CLR 133, at p 138, the Court (Latham C.J., McTiernan, Webb, Fullagar and Kitto JJ.) pointed out that it "is clear that special leave should be granted to the Crown" to appeal to this Court in a criminal matter "only in very exceptional circumstances". That statement was made in the context of an application by the Crown for special leave to appeal from a decision of a Court of Criminal Appeal quashing convictions and ordering a new trial. The position is even clearer in a case where the application for special leave to appeal is from orders of a Court of Criminal Appeal that a conviction be quashed and a judgment and verdict of acquittal be entered. As Dixon J. said, in relation to such an application in R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, at pp 516-517, the Court should be careful to remember "that it is not in accordance with the general principles of English law to allow appeals from acquittals, and that it is an exceptional discretionary power vested in this Court". Those comments in Lee and in Wilkes should not be seen as empty rhetoric which can be formally acknowledged and effectively ignored. They are authoritative statements of the approach which considerations of fairness and of traditional principle require this Court to observe when asked by a State to subject a person, who has been acquitted or granted a new trial by the State's own ultimate criminal court, to the ordeal of renewed jeopardy or to the risk of being deprived of the chance of acquittal on a new trial. The rule of practice which they embody represents an important component of the barrier which divides the due administration of the criminal law and oppression (cf. Jago v. The District Court of New South Wales, unreported, 12 October 1989, pp 37-38).

2. The present application is by the Crown for special leave to appeal from a decision and orders of the Queensland Court of Criminal Appeal. The detailed facts and circumstances involved in it are set out in other judgments. I shall avoid unnecessary repetition of them. As against Mrs. Murray, the Crown seeks to set aside orders that her convictions be quashed and that there be a new trial. As against Miss Benz, the Crown seeks to set aside verdicts of acquittal. The question which must be asked in each case is whether the Crown has demonstrated that the circumstances are properly to be seen as so exceptional that a grant of special leave would be justified. In Miss Benz's case, that question must be answered with due regard being paid to the considerations identified by Dixon J. in Wilkes (see above).

3. The question of principle which the Crown has suggested would be involved in the proposed appeal is "whether something said by one of the alleged offenders at the time of or immediately after the commission of the offence, which is designed to conceal the guilt of all of them, is part of the res gestae". The answer to that question, if it be read as framed in the abstract, would seem to me to be that it depends upon the circumstances. In Lejzor Teper v. The Queen (1952) AC 480, at p 486, the Privy Council pointed out that the exception to the hearsay rule involved in the admissibility of a statement as part of the res gestae "appears to rest ultimately on two propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth". However, as their Lordships were at pains to stress (at pp 486-487), "the judicial applications of these two propositions, which do not always combine harmoniously, have never been precisely formulated in a general principle". Ultimately, whether statements are admissible as part of the res gestae is something which must be determined by reference to the particular facts of the particular case including the precise role played in the commission of the offence by the persons by and to whom the statement was made and the relationship between the statement and the acts constituting the offence. Even when they are part of the res gestae, statements which are not proved to have been made by or with the acquiescence of the particular accused may be so unfairly prejudicial and of such small legitimate probative value that they should, notwithstanding that they are strictly admissible, be excluded as a matter of discretion.

4. In the present case, the statement made to Mr. Saunders by one of the two persons on the bridge at Mundoolun to the effect that her "mother" (referring to the other person) was unwell was inadmissible against either respondent unless it was first established that it was made by, or in the presence and with the acquiescence of, the particular respondent. In the absence of any positive identification of the respondents as the persons on the bridge, that was not done. That being so, Mr. Saunders' evidence of the statement was prima facie inadmissible in that it was hearsay evidence of something asserted by a third party. True it is that the speaking of words may be described as a "fact". Evidence of the fact that certain words were spoken by a person other than an accused is, however, not admissible in a criminal trial unless some basis, beyond the relevance of what is said, is laid for its reception. There has in recent times been considerable discussion in judgments and other learned writings of the foundation and desirability of a general rule excluding the reception of hearsay evidence. In particular, in Walton v. The Queen [1989] HCA 9; (1989) 166 CLR 283, there was recognition in some judgments in this Court of the need for greater flexibility in the application of the hearsay rule. That question has not, however, been raised in this case, let alone argued. The only basis upon which the Crown has supported the admissibility of Mr. Saunders' evidence of the statement made to him is that the making of that statement was part of the res gestae of the actual offence.

5. Even if it be assumed (in the Crown's favour) that evidence of the making of the particular statement was admissible in the particular circumstances of the present case as part of the res gestae, the judgment of the Court of Criminal Appeal does not contain any significant misstatement of principle in that regard. Their Honours simply did not advert to the possible admissibility of the statement as part of the res gestae of the offence. The explanation for that apparently lies in the way the case was argued. The question of the admissibility of the statement was not raised in the notices of appeal to the Court of Criminal Appeal. This Court was informed that counsel who appeared for the Crown in the Court of Criminal Appeal had neither anticipated that the question would be raised nor sought an adjournment when it was with the result that there was "no proper argument" of the matter. In these circumstances, it is difficult to see how it could properly be said that the question whether the statement was admissible in the circumstances as part of the res gestae raises any matter of general principle or general public importance of a kind which could justify the grant to the Crown of special leave to appeal to this Court. Moreover, there are positive reasons why special leave should be refused in the present case. For one thing, the Court is deprived of the benefit of any discussion by the Court of Criminal Appeal of the one question of principle which the Crown has suggested would be involved in the proposed appeal. For another, careful examination of the reasons for judgment of the Court of Criminal Appeal discloses that it is likely that their Honours would have concluded that the respondents' convictions must be set aside even if the question whether the particular statement was admissible as part of the res gestae had been properly argued in that court and resolved in the Crown's favour. To demonstrate that that is so, it is necessary that I set out at length what seem to me to be the critical passages in the judgment of Kneipp J. (with whom Kelly S.P.J. and Demack J. agreed). Those passages read as follows:

"(Mr. Saunders) gave a description of the women,
beginning with the person who spoke to him:-
'...about 24, 25 years old, shoulder-length
hair - light brown to brown in colour -
reasonably attractive, thin features
in the face, ... wearing slacks or track
suit pants of some sort and a blouse.'
He said the clothing was dark in colour
and she appeared neatly dressed. Referring
to the other person he said:-
'This other person seemed to be older,
dressed in a track suit type of outfit,
fairly loose fitting, seemed to be fairly
solid built around the midriff ... had
shorter hair ... a bit shorter than
shoulder-length, and it seemed to be wavy
either with a perm or something like
that. ... Certainly seemed female.'
He said they seemed roughly the same
height, but the second person was possibly a
little bit shorter.
...
The only other evidence which might be
thought to implicate Benz consisted of what
Mr. Saunders said he saw at the bridge. I
have already set out his evidence. In his
summing up His Honour also set out that
evidence. All that he said about it was
'Whether you think those descriptions assist
you - there has been some discussion about
times - I don't think I can help you very
much'. With respect, I do not think that the
matter should have been left there, given
the accepted dangers of leaving to a jury,
without proper instructions, evidence which
they might use as evidence of identification
where the persons concerned were not familiar
with each other. It would seem certain that
the bridge area was unlighted, except perhaps
for the headlights of Mr. Saunders' vehicle,
the two women, I assume, being to the rear of
the lights. The description of the woman who
spoke, whom I will call the first woman, was
that she was 'about 24 or 25, shoulder-length
hair, light brown to brown in colour,
reasonably attractive, thin features ...'.
That of course was a description which could
fit any number of women. There was no
description at all of the second woman.
There was no subsequent identification of the
first woman. The only use which the jury
could make of the description would be to
look at Benz in Court and decide whether she
was the woman described by Mr. Saunders. If
they decided that the first woman was Benz
then they might have decided, by reference to
the use of the word 'mother', that the second
woman was Murray. That brings me to the
question whether what the first woman said
was admissible as evidence of relationship
between the two. I do not think that on any
view it was admissible against Murray. As
against Benz, I think that it was admissible
only on evidence which could identify her as
the person who said it, and I do not think
that there was any.
In my view the only conclusions one could
draw were that the two women could have been
the appellants, and the vehicle could have
been the vehicle from Fifteenth Avenue. On that
view, I doubt if the evidence had any probative
value, but I need not pursue that question.
In the result, in my opinion a properly
instructed jury, acting reasonably, must have
entertained a reasonable doubt as to the
guilt of the appellant Benz on the charge of
murder. I think that the appeal against the
conviction for murder should be allowed and
that conviction quashed. I understood it to
be common ground that in those events the
appeal against the conviction for arson should
also be allowed and that conviction quashed.
I turn to the case against Murray. ...
...
There is the question of the possible effect
of the evidence of Mr. Saunders. As has been
seen, the jury were left to make what they
would of that evidence. It is accepted that
there are serious dangers in allowing juries
to use evidence of identification without
adequate instruction. That proposition is
the basis of the strict requirements laid
down by final courts of appeal as to the type
of instruction which should be given by trial
Judges on this subject. I think that there
is a serious risk that the jury may have used
the evidence of Mr. Saunders as positive
evidence of identification. The risk is
accentuated by the fact that they had before
them the inadmissible statement as to
relationship. They could have regarded this
as being very significant. I could not be
satisfied that there would have been a
conviction had there been an adequate
instruction on this matter and an exclusion
of what was said. I think that the appeal
should be allowed, the conviction quashed,
and a new trial ordered. There should be the
same orders in relation to the conviction against
her on a charge of arson of the motor vehicle."

The emphasis has been added by me for the purpose of subsequent discussion.

6. As the above passages demonstrate, the decision of the Court of Criminal Appeal setting aside Mrs. Murray's convictions turned largely upon their Honours' conclusion that, in the particular circumstances of the case, the jury should have been given some warning in relation to their use of Mr. Saunders' descriptions of the two persons whom he had seen on the bridge. It is clear that, if the Court of Criminal Appeal had not been of the view that the evidence was insufficient to sustain Miss Benz's convictions, their Honours would nonetheless have set her convictions aside for the reasons which led them to quash Mrs. Murray's. Their Honours obviously appreciated (see, in particular, the parts of the above extract which have been emphasized) that the evidence of Mr. Saunders was not "identification evidence" in the ordinary sense in that, as they pointed out, he did not proceed from description to "subsequent identification". They were, nonetheless, of the view that, in all the circumstances, the jury should have been specifically warned about a possible danger in their use of the descriptions.

7. The danger of disputed identification evidence given by a witness who did not previously know the subject of the identification lies in its possible unreliability. The extent of the unreliability will depend upon a variety of facts, including the opportunity for observation (see, e.g., Reg. v. Turnbull (1977) QB 224, at p 228). The descriptions given by Mr. Saunders of the two persons whom he saw on the bridge involved opinion, conclusion and comparison: "24, 25 years old"; "reasonably attractive"; "thin features"; "older"; "fairly solidly built around the midriff"; "shorter hair". His evidence of those descriptions raised problems as regards reliability similar to those involved in identification evidence in the strict sense. The light was obviously bad. On his own evidence the impression which Mr. Saunders gained of one of the two persons was so vague that, both in his evidence in chief and in cross-examination, he was prepared to go no further than to say that that person "seemed" female. It is true that Mr. Saunders' evidence lacked the added unreliability which would be involved in the final step to positive identification. That was, however, a step which the jury itself was left free to take without any guidance at all from the learned trial judge about the use which could safely be made of Mr. Saunders' vague descriptions.

8. A trial judge has a general responsibility to give appropriate directions to guide the jury in relation to the performance of their function as the judges of fact. That responsibility includes the giving of any caution or warning about the danger involved in acting on particular evidence either at all or in a particular way when that danger may not be appreciated by the jury. In the present case, the relevant prosecution evidence was clearly aimed at persuading the jury that the respondents were the two persons on the bridge. There was the evidence of Mr. Saunders of the descriptions of the persons whom he saw. The jury would inevitably have observed the respondents to see whether, in their view, they fitted the descriptions. That that was what the Crown was inviting them to do was made quite clear by the evidence which the Crown led from a Mr. Bladen to the effect that, between the time when Mr. Saunders saw the two persons on the bridge and the time of the trial, Mrs. Murray's hair had become "a bit shorter" and she had lost weight "around the middle". This evidence was obviously aimed towards adjusting the Mrs. Murray whom the jury saw to Mr. Saunders' description of the second person as being "fairly solidly built around the midriff" and as having "shorter hair". As that evidence was led by the Crown from Mr. Bladen, Mrs. Murray was asked to stand up.

9. Presumably, the jury accepted that the two persons whom Mr. Saunders saw on the bridge were the persons responsible for killing Mr. Taber. Indeed, unless that is so, it is difficult to see that there was any evidence at all that Miss Benz was an active participant in the killing. Mr. Saunders' descriptions of those two persons indicated that, to use Kneipp J.'s word, they "could" have been the respondents in that there was no significant inconsistency between the descriptions and the appearance of the respondents as adjusted by Mr. Bladen's evidence about the changes in Mrs. Murray's appearance. In a context where the jury were being implicitly asked to fit the descriptions of the persons on the bridge to their own visual observation of the respondents, the members of the Court of Criminal Appeal concluded that it was necessary that the jury be warned about the danger which could be involved in using Mr. Saunders' descriptions as of themselves founding an "identification" (by the jurors) of the respondents as the two persons whom Mr. Saunders saw on the bridge. There are strong reasons supporting that conclusion. Plainly enough, a warning to the jury about the possible dangers involved in their taking the step from description to "identification" of the respondents as the persons on the bridge would have been desirable even if Mr. Saunders' descriptions had been detailed and precise. In circumstances where those descriptions were so vague that they could apply to a limitless number of persons and where the prosecution had led evidence for the purpose of adjusting the description to fit the accused, there is obviously great force in their Honours' view that such a warning was essential. It is true that, as has been said, neither the evidence of Mr. Saunders nor the evidence of Mr. Bladen was identification evidence in the strict sense. That is, however, beside the point. Indeed, the danger of a miscarriage which would be involved if the jurors themselves took the positive step to "identification" on the basis of Mr. Saunders' and Mr. Bladen's descriptions would arguably be much greater than the danger which would have been involved if Mr. Saunders, who had actually seen the two persons on the bridge, had himself been prepared to take that step in his evidence and the jury had acted on what he said.

10. In the absence of an applicable rule making the giving of a particular kind of warning or caution mandatory in a particular category of case, it is not part of the function of an appellate court to substitute its own views of what directions were desirable in the circumstances of a particular case for those of the trial judge. An appellate court will commonly be ignorant of the atmosphere of the trial, the contents of counsel's addresses to the jury which precede the trial judge's summing up and the true forensic issues. Its essential function is to intervene to prevent possible miscarriage of justice. When complaint is made of the absence of a particular warning, caution or direction, the ultimate task of a member of an appellate court is not to determine whether he or she would have thought that the relevant warning, caution or direction was desirable in the particular circumstances of the case. It is to determine whether, viewed in the context of the summing up as a whole and of any other specific or general valid criticisms of it, the effect of the absence of the relevant warning, caution or direction is that there is a real risk that justice has miscarried with the result that the verdict is unsafe and unsatisfactory. The passages which I have extracted from the judgment of Kneipp J. (above) effectively address that ultimate question. They seem to me to indicate that the members of the Court of Criminal Appeal would have answered it in the affirmative and set aside the convictions of the respondents as unsafe and unsatisfactory even if they had been of the view that the statement made to Mr. Saunders was admissible. Acceptance of the admissibility of that statement would have been unlikely to have affected their Honours' view that "the only conclusions" which could legitimately be drawn from the evidence of Mr. Saunders "were that the two women could have been the appellants, and the vehicle could have been the vehicle from Fifteenth Avenue". In particular, the last of the paragraphs extracted from Kneipp J.'s judgment clearly suggests that the "serious risk" arising from the absence of what the Court of Criminal Appeal saw as a necessary warning would have been seen by their Honours as of itself requiring that the respondents' convictions be set aside even if their Honours had not considered that that risk had been "accentuated" by an "inadmissible statement".

11. The effect of what has been said above can now be restated in summary form. The answer to the question of principle which the Crown has identified as involved in the proposed appeal, namely whether the statement to Mr. Saunders was part of the res gestae, turns very much on the particular facts of the case. That question was not properly argued on behalf of the Crown in the Court of Criminal Appeal with the result that this Court is deprived of the benefit of an examination of it by that court. Even if that question had been properly argued in the Court of Criminal Appeal and had been resolved in the Crown's favour, it is likely that their Honours' view that there had been a failure on the part of the learned trial judge to provide necessary guidance to the jury about the use which might be made of Mr. Saunders' descriptions of the two persons on the bridge would have led them to conclude that the convictions must, in any event, be set aside as unsafe and unsatisfactory. There are strong reasons supporting such a conclusion. In these circumstances, it appears to me that the settled rule of practice that special leave to appeal to this Court from a Court of Criminal Appeal should be granted to the Crown "only in very exceptional circumstances" requires that special leave to appeal should be refused and the application dismissed. That conclusion is reinforced in Miss Benz's case by the considerations referred to by Dixon J. in his judgment in Wilkes.

12. I would refuse special leave with costs.

DAWSON J. Each of the respondents was convicted of the murder of Ronald Forbes Taber on or about 11 September 1987 at Mundoolun in the State of Queensland. Each was also convicted upon one count of arson of a motor car.

2. Taber's body was found on 17 September 1987 in the Albert River downstream from a wooden bridge known as the Mundoolun Bridge. The bridge crosses the river at a point some 70 kilometres by road from Palm Beach on the Gold Coast. It appears from the evidence that the deceased died from drowning, although he had previously suffered extensive injuries to his head and stab wounds to his chest and throat. One of the stab wounds had severed his carotid artery. The evidence was consistent with the deceased's having been rendered unconscious and having been taken to the bridge where he was stabbed and rolled into the river whilst still alive.

3. The respondent Murray, who was 36 years of age at the time of the deceased's death, had been his de facto wife for about two years. The deceased was a builder and developer on the Gold Coast. He was 36 years of age and heavily built, weighing 113 kilograms or nearly 18 stone. The deceased and Murray lived together in one of the deceased's houses at Fifteenth Avenue, Palm Beach. The house was still being completed and on 11 September 1987 carpet was laid on the stairs. That carpet, and carpet previously laid in the bedroom occupied by the deceased and Murray, was inspected on 11 September 1987 and was found to have been laid in a workmanlike manner.

4. The respondent Benz was Murray's daughter from a previous relationship. She was 19 years of age. She lived in Sydney, but on 10 September 1987 she travelled to the Gold Coast to visit her mother. She told a friend, with whom she spent the first night there, that she had come to get her mother because of the way in which the deceased had been treating her. There was other evidence of recent disharmony between the deceased and Murray. Benz spent the next night, 11 September 1987, at the house occupied by her mother and the deceased. She told the police that during the evening she watched television and eventually went to bed. She said she did not see or hear anything untoward. She said she awoke at about 8.00 a.m. and later that morning returned to Sydney. She denied any knowledge of the circumstances of the deceased's death.

5. On the evening of 11 September 1987 the deceased brought home take-away food for the evening meal. According to an account given by Murray to the police, she and the deceased went to bed some time after having eaten. She said that the deceased woke her at 4.00 a.m. the following morning and told her that he was going to work. She said that he left and that she did not see him after that. Upon her account she was later woken by the telephone and as a result of that call she left the house to look for the deceased.

6. Among several motor vehicles kept at the house at Fifteenth Avenue, Palm Beach, was a blue Ford Laser hatchback motor car. That was the car which Murray ordinarily drove.

7. There was evidence that by 12 September 1987 the carpeting had been removed from the landing and the top flight of stairs, and later observations indicated that the carpet in the bedroom occupied by Murray and the deceased had been replaced in an amateurish fashion with carpet taken from the stairway. There was also evidence of blood stains in the bedroom, the blood belonging to the same group as the deceased's blood.

8. Evidence was given by a witness named Saunders that on 11 September 1987 he was employed as a security officer at Beenleigh Rum Distillery. He said that he worked during that evening and finished about 2.00 a.m. He left the distillery at about 2.45 a.m. and began to drive home. He lived near the Mundoolun Bridge. He described the Mundoolun Bridge as a wooden, one-lane bridge with no rails on either side. He said that there is a very bad corner approaching the bridge in the direction in which he was travelling and that he had to slow down. He said: "As I turned the corner and went to go across the bridge I saw two people standing on the bridge in the centre on the left hand side. I drove down to the centre of the bridge, stopped the car, wound down the passenger side window of the car and basically asked them if everything was all right. One of the people who was a female, turned and they both had their back towards the car when I drove up. One of them turned towards me, I asked her if everything was all right. She replied that it was O.K., her mother was just feeling sick. My first thoughts were that a car had actually gone off the bridge; that's happened quite often." The witness said that the other person, who was a female, kept her back to him. He said the two women were standing fairly close together, between 12 and 18 inches apart. They were, according to the witness, slightly hunched when he first observed them in the headlights of the car and facing over the edge of the bridge towards the water.

9. Saunders described the person who spoke to him, beginning with her age: "From what I can recollect, I thought it was about 24, 25 years old, shoulder-length hair - light brown to brown in colour - reasonably attractive, thin features in the face, wearing a - certainly wasn't a dress, it was slacks or track suit pants of some sort and a blouse." He said that the person's clothing was dark in colour and she was neatly dressed. The witness said that the other person "seemed to be older, dressed in a track suit type of outfit, fairly loose fitting, seemed to be fairly solidly built around the midriff area from what I could tell from the back, had shorter hair. Again, would have been a bit shorter than shoulder-length and it seemed to be wavy either with a perm or something like that." He said that the other person was roughly about the same height as the person to whom he spoke, "possibly a little bit shorter".

10. Saunders also said that he saw a vehicle parked right at the end of the bridge ahead of him on a little grass verge. He said that it was "a Laser or Pulsar type hatchback" and the passenger side doors and back hatch were open. He said that it seemed to be blue in colour. He said that he warned the younger woman that it was not safe on the bridge and that a lot of people had been killed there and she replied "O.K., all right" or "O.K., thank you." The witness then drove on towards his home. The blue Laser motor car which Murray was accustomed to drive was found abandoned and burning in another location in the neighbourhood at about 5.20 a.m. on the same morning.

11. Evidence was given that, when the deceased's body was found, there were drag marks along the side of the bridge approximately 9 metres in length terminating near a large bolt. There were stains on the bridge which, when tested, gave the positive reaction of blood. An expert witness said that there appeared to be blood on the bolt head "and then the stain just stopped because that was the edge of the bridge". A gold chain belonging to the deceased was found in the water at a point approximately midway across the bridge on the upstream side. A short distance downstream from where the body of the deceased was found was a piece of black plastic sheeting of the kind used in the building trade. On it were spots of blood of the same group as the deceased's blood group and spots of paint of the same kind as the paint used on the house at Fifteenth Avenue.

12. Neither of the respondents gave evidence. They both appealed successfully to the Court of Criminal Appeal, which quashed their convictions. In the case of the respondent Murray, the Court ordered a new trial and in the case of the respondent Benz, it ordered that judgment and verdict of acquittal be entered. The Court of Criminal Appeal regarded the evidence given by the witness Saunders as crucial and formed the view that it was evidence of identification and ought to have been accompanied by a direction from the trial judge containing the appropriate warnings in relation to identification. The Court of Criminal Appeal also thought that the statement by the younger woman on the bridge that her mother was just feeling sick was hearsay and that, notwithstanding that it had been admitted without objection, it ought to have been excluded. Kneipp J., with whom Kelly S.P.J. and Demack J. agreed, said of this evidence:

"I do not think that on any view it was
admissible against Murray. As against Benz,
I think that it was admissible only on
evidence which could identify her as the
person who said it, and I do not think that
there was any. ... I think that there is a
serious risk that the jury may have used the
evidence of Mr. Saunders as positive evidence
of identification. The risk is accentuated
by the fact that they had before them the
inadmissible statement as to relationship."

13. The Court of Criminal Appeal took the view that if the impugned evidence was disregarded, the verdict against the respondent Benz was unsafe and unsatisfactory and it was upon this basis that it ordered that judgment and verdict of acquittal be entered in her case. There was, of course, stronger evidence against the respondent Murray concerning the events preceding the scene observed by Saunders on the Mundoolun Bridge.

14. The Crown now seeks special leave to appeal in relation to both respondents. This Court undoubtedly has power to grant special leave to appeal against the decision of a court of criminal appeal quashing a conviction and entering judgment and verdict of acquittal or ordering a new trial: Attorney-General of New South Wales v. Jackson [1906] HCA 90; (1906) 3 CLR 730; R. v. Snow [1917] HCA 25; (1917) 23 CLR 256, at p 261; R. v. Weaver [1931] HCA 23; (1931) 45 CLR 321, at p 333; Davern v. Messel [1984] HCA 34; (1984) 155 CLR 21, at pp 35-37, 53. Notwithstanding that a distinction is to be drawn between judgments given by courts of criminal appeal and those based upon a jury's verdict, the jurisdiction to grant special leave to appeal to the Crown is to be sparingly exercised and only in exceptional circumstances: see R. v. Wilkes (1948) 77 CLR 511, at pp 516-517; R. v. Lee [1950] HCA 25; (1950) 82 CLR 133, at p 138. The circumstances available to the Crown to support an application for special leave to appeal will necessarily be limited to matters of public importance and will, for that reason, ordinarily be more confined than those available to support an application by a convicted person. It is in that sense that the grant of special leave to the Crown is said to be exceptional. However, in this case it seems to me that the Court of Criminal Appeal fell into error upon matters of basic principle regarding the admissibility of evidence and the use which may be made of it. It is important that the error not be repeated in other cases and, for that matter, in the case of the respondent Murray if she is to be retried. In my view, special leave in the case of each respondent should be granted in the interests of the administration of justice.

15. The Court of Criminal Appeal was in error in regarding the evidence of the witness Saunders as evidence of identification requiring the jury to be warned of the dangers which attend the use of such evidence. In giving evidence Saunders made no identification of the two persons he saw on the Mundoolun Bridge. All that he did was to give a description of what he saw including a description of the two women. Any inadequacies in his description would have been apparent to the jury when they considered it together with the other evidence, such as the presence of a motor car of the type used by the respondent Murray, which tended to show that the two women on the bridge were the respondents. Had Saunders been asked to attempt to identify the respondents in the dock as the two women he saw on the Mundoolun Bridge, there may have been evidence of identification calling for an appropriate direction from the trial judge. But, quite properly, Saunders was not asked to attempt that identification.

16. Identification occurs when one person recognizes another by comparing his current observations of that person with his recollection of him. It is the unreliability of human recollection as a basis for recognition which may call for a warning to the jury. As Mason J. observed in Alexander v. The Queen [1981] HCA 17; (1981) 145 CLR 395, at p 426, identification depends upon so many variables: "They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection ..." In Davies and Cody v. The King [1937] HCA 27; (1937) 57 CLR 170, at p 182, this Court said:

"... if a witness whose previous knowledge of
the accused man has not made him familiar
with his appearance has been shown the
accused alone as a suspect and has on that
occasion first identified him, the liability
to mistake is so increased as to make it
unsafe to convict the accused unless his
identity is further proved by other evidence
direct or circumstantial. Where that further
evidence consists in or includes other
witnesses whose identification has been of
the same kind, the number of witnesses, their
opportunities of obtaining an impression
or knowledge of the prisoner and other
circumstances in the case must be taken into
account by the court of criminal appeal for
the purpose of deciding whether on the
whole case the possibility of error is so
substantial as to make the conviction unsafe.
As the responsibility of convicting must
rest with the jury their appreciation of the
question is an important consideration, and
in a case where the method of identification
is open to the objections we have discussed,
they should be clearly warned of the dangers,
which according to the accepted view, do exist."

In this case, the witness Saunders did not identify the two women whom he saw on the bridge. He placed no reliance upon any previous knowledge or recollection of them; indeed, he had none. His description of the two women was no different in character from the evidence which he otherwise gave about the scene which confronted him on the night in question. Whether that description, together with the other evidence, was sufficient to establish that the two women on the bridge were the respondents was a question for the jury and, beyond the ordinary direction as to the standard of proof, called for no special warning by the trial judge. That question was to be determined upon the evidence which did not include evidence of identification.

17. Saunders' evidence that the younger woman on the bridge said that "her mother was just feeling sick" appears to have been regarded by the Court of Criminal Appeal as inadmissible against the respondent Murray because it was hearsay and admissible against the respondent Benz only as an admission against interest and then only if there was other evidence to identify Benz as the person who made the statement. To approach the matter in that way is, however, to misconceive the nature of the evidence. It is true that the relevant statement contained two assertions, namely, an implied assertion that the older woman was the mother of the woman who made the statement, and an express assertion that she was feeling sick or, at all events, complaining of feeling sick. However, evidence of the statement was admissible otherwise than to prove the truth of either of those assertions. It was no part of the Crown case to prove that the older woman on the bridge was sick. On the contrary, the Crown case was that the only explanation of her presence was her implication in the murder of the deceased. Nor was it part of the Crown case to prove that the two persons on the bridge were mother and daughter. If they were the respondents it was not in issue that they were mother and daughter and if they were not the respondents their relationship was immaterial. What was relevant was the fact that the younger woman referred to the older woman as her mother, thus suggesting, together with the other evidence, that the two women on the bridge were the respondents. In other words, in referring to the older woman as her mother, the younger woman was acting in accordance with the relationship known to exist between the respondents and it was that fact which was relevant. As Lord Wilberforce pointed out in Ratten v. The Queen (1972) AC 378, at p 387:

"The mere fact that evidence of a witness
includes evidence as to words spoken by
another person who is not called, is no
objection to its admissibility. Words spoken
are facts just as much as any other action by
a human being. If the speaking of the words
is a relevant fact, a witness may give
evidence that they were spoken. A question
of hearsay only arises when the words spoken
are relied on 'testimonially', i.e., as
establishing some fact narrated by the words."

The behaviour of the younger woman as a daughter in referring to the older woman as her mother was as much a fact as any of the other circumstances described by the witness Saunders and the jury were entitled to have regard to it in drawing their conclusions about the identity of those two women.

18. The younger woman's statement did not form part of a narrative but constituted conduct from which, together with the other evidence, it might be inferred that the two women on the bridge were the respondents. It was not, therefore, a statement as to pedigree which, within certain narrow limits, is admissible as an exception to the hearsay rule where a dispute has subsequently arisen and the person making the statement has since died: see Re Pennington (dec'd) (No.2) (1978) VR 617, at p 624. The making of the statement constituted conduct which went to the identity of the two women on the bridge and was admissible, not as an exception to the hearsay rule, but as a relevant fact. It was in this way that in The Aylesford Peerage case (1885) 11 App Cas 1, where the paternity of a child was in dispute, statements of the mother and alleged father of the child were admitted "as proofs of matters of conduct" to rebut the presumption of legitimacy: see at p 11; also Lloyd v. Powell Duffryn Steam Coal Company Limited (1914) AC 733, at p 741.

19. The Crown sought during argument to justify the admission in evidence of the younger woman's statement upon the basis that it was part of the res gesta. It was, of course, part of the res gesta constituted by the presence of the two women on the Mundoolun Bridge. Their presence at that time and place was one of a series of actions constituting the entire criminal transaction which the Crown sought to prove. Statements accompanying a relevant act are clearly admissible as part of the res gesta - see Phipson on Evidence, 13th ed. (1982), par.7-15 and the cases there cited - and the statement in question accompanied the act of being present on the bridge. The problems which arise when a statement which is said to form part of the res gesta is not contemporaneous with the relevant act do not arise in this case. Cf. Reg. v. Andrews (1987) AC 281; Vocisano v. Vocisano [1974] HCA 14; (1974) 130 CLR 267. The statement in question here was part of an occurrence which the Crown was entitled to lead in evidence.

20. But it was unnecessary for the Crown to rely upon the doctrine of res gesta because evidence of the statement was not excluded by the hearsay rule. It was not excluded and was admissible on the ground of relevance alone.

21. It is true, as appears to have been recognized by the Court of Criminal Appeal, that it was open to the jury, if they concluded that the person who made the statement in question was the respondent Benz, to regard that statement as amounting to a deliberate untruth, thus exhibiting a consciousness of guilt on her part. However, the use of the evidence in that way extended beyond the respondent Benz to the respondent Murray if the jury concluded that she was the other person on the bridge. Whilst the statement was not made by the respondent Murray, the absence of any denial or other reaction on her part was capable of amounting to the adoption by her of what was said, thus enabling it to be used against her in the same way as it might be used against the other respondent: see Woon v. The Queen [1964] HCA 23; (1964) 109 CLR 529, at p 537. In his charge to the jury the trial judge did not instruct them, but ought to have done so, that the evidence might be used in this way and that ultimately the question which it raised was a matter for them. However, the trial judge's failure to direct the jury in this manner prejudiced the Crown case rather than that of the respondents.

22. In my view, special leave to appeal ought to be given in the case of each respondent and the appeal ought to be allowed. Were the matters with which the Court of Criminal Appeal dealt the only matters raised by the grounds of appeal, I should have considered it appropriate that the convictions be restored in the case of each respondent. But there were other matters relied upon by the respondents which the Court of Criminal Appeal found it unnecessary to consider. The case should be remitted to the Court of Criminal Appeal to enable it to consider those matters which, in relation to the respondent Benz, include consideration of whether the verdict against her was unsafe or unsatisfactory notwithstanding the admissibility of the evidence which the Court of Criminal Appeal erroneously thought to be inadmissible. I do not by this mean to suggest that the verdict was unsafe or unsatisfactory, but the respondent Benz must be afforded the opportunity to put further argument on the point.

GAUDRON AND McHUGH JJ. The Crown in right of the State of Queensland seeks special leave to appeal against orders of the Court of Criminal Appeal of the Supreme Court of that State which allowed appeals by Karen Anne Benz and Cheryl Delores Murray, her mother, against their convictions and life sentences for the murder of Ronald Forbes Taber (the deceased). The Court also allowed their appeals against their convictions and sentences for the arson of a motor vehicle. The Court of Criminal Appeal ordered a new trial of the charges against Mrs Murray but entered an acquittal in respect of the charges against Miss Benz. The Court held that part of the evidence of Mr Neil Saunders, a witness for the Crown, had been wrongly admitted as evidence of the relationship which existed between two women alleged to be theaccused and that the jury had not been adequately instructed concerning the danger of using other evidence given by him "as positive evidence of identification". Mr Saunders had testified that, on the night on which the Crown alleged that the respondents murdered the deceased, he spoke to two women whom he could not identify but who were standing on a bridge near where the body of the deceased was found. In reply to his question whether everything was all right, the younger of them said, "It's all right, my mother's just feeling sick." The principal question in the case is whether the statement was admissible against the respondents.
The General Nature of the Crown Case

2. At the time of the deceased's murder, he was living in a de facto relationship with Mrs Murray. The Crown alleged that on the night of 11-12 September 1987 Miss Benz and Mrs Murray had attacked the deceased in the bedroom of a house which he and Mrs Murray shared at Fifteenth Avenue, Palm Beach, on the Gold Coast. In that attack he had received multiple blows to the head which caused lacerations, extensive fractures and brain damage. A medical witness gave evidence that if all those wounds had been inflicted at the same time they would have caused immediate and continuous loss of consciousness and would have caused death within a few hours. The Crown alleged that after the attack the two women had taken the deceased in a blue Laser hatchback car to the Mundoolun Bridge some 70 kilometres away, where between 3.00 and 3.40 a.m. he was stabbed in the neck and chest. The stab wound to the chest severed the carotid artery causing massive blood loss which would have resulted in death within three to five minutes. The Crown alleged that the two women, after stabbing the deceased, threw his body into the Albert River. It was recovered five days later at a spot which was a short distance from the bridge. Medical evidence established that the deceased was still alive when he entered the water. Consequently, drowning and not stabbing was the cause of his death. A blue Laser hatchback car, ordinarily driven by Mrs Murray, was found in a rural area at about 5.20 a.m. on 12 September 1987. The car was on fire. Its numberplates had been removed. The place where the Laser was found was about six kilometres from the deceased's home.

3. At the trial, Mr Saunders gave evidence that, between 3.00 and 3.40 a.m. on 12 September 1987, as he drove across the Mundoolun Bridge, he saw two women standing in the centre of the bridge on the left-hand side. The bridge was a wooden, one lane bridge with no rails. The two women had their backs to him as he drove up. He stopped his car, wound down the passenger side window, and asked if everything was all right. Mr Saunders testified that one of the women had said, "It's all right, my mother's just feeling sick." He described the woman to whom he spoke as "about 24, 25 years old, shoulder-length hair - light brown to brown in colour - reasonably attractive, thin features in the face, wearing a - certainly wasn't a dress, it was slacks or track suit pants of some sort and a blouse". He said that the other woman seemed to be older, "dressed in a track suit type of outfit ... seemed to be fairly solidly built around the midriff area from what I could tell from the back, had shorter hair". At all times this woman remained facing the water with her back to him. Mr Saunders also gave evidence that he had seen a blue "Laser or Pulsar ... hatchback type car" parked on a grassy verge at the end of the bridge and that the back hatch had been open.

4. After the discovery of the deceased's body, police officers later observed drag marks approximately nine metres in length on the planking of the bridge. The marks terminated near a bolt upon which was a blood stain consistent with the blood grouping of the deceased. The bolt was about 19.5 metres from one end of the bridge and about 17.5 metres from the other end. Police divers found a gold neck chain, ordinarily worn by the deceased, in the river at a place directly below the middle of the bridge.
The Reasons of the Court of Criminal Appeal

5. The Court of Criminal Appeal held that evidence as to what the younger woman had said to Mr Saunders was not admissible as evidence of the relationship between the two women. It said that "the only conclusions one could draw were that the two women could have been the appellants, and the vehicle could have been the vehicle from Fifteenth Avenue". The Court held that, on the evidence admissible against Miss Benz, a properly instructed jury must have entertained a reasonable doubt as to her guilt. However, their Honours held that, on the evidence properly admissible against Mrs Murray, a properly instructed jury could have convicted her of both charges. But the Court ordered a new trial in her case because "the jury may have used the evidence of Mr. Saunders as positive evidence of identification", as well as having had before them an inadmissible statement as to the relationship of the two women. Their Honours said that they "could not be satisfied that there would have been a conviction had there been an adequate instruction on this matter and an exclusion of what was said".
The Circumstantial Evidence

6. The first question in this application is whether the statement made to Mr Saunders was admissible against the respondents or, alternatively, against Miss Benz. But before answering that question, it is necessary to refer to the evidence in more detail.

7. The case for the Crown was purely circumstantial. Neither accused gave evidence. From January 1987, the deceased and Mrs Murray lived in a two-storey house owned by the deceased at Fifteenth Avenue, Palm Beach, on the Gold Coast. In September 1987, they were the only permanent occupants. The deceased was a builder and property developer. He was aged 36 and weighed about 18 stone. Mrs Murray was also 36 years of age. Miss Benz, who was the daughter of Mrs Murray's first marriage, was aged 19 years. She lived in Sydney, but had arrived at the Gold Coast on Thursday, 10 September 1987. There was evidence that, in response to a question about her presence at the Gold Coast, Miss Benz had said that she had come to take her mother away from the deceased because of the way he had treated her. The Crown also led evidence that, two or three weeks before 10 September 1987, Mrs Murray had taken some property to a friend's house and asked her to mind it "until she sorted out with Ron a few problems". However, a person who had worked for the deceased for about eight years until shortly before his death gave evidence that he and Mrs Murray "always seemed to be happy".

8. Miss Benz spent her first night on the Gold Coast at a friend's place. But according to various statements which she made to police officers she spent the Friday night at the house on Fifteenth Avenue. She said that she arrived there at about 5.00 p.m., went out for a walk, and returned to find the deceased and her mother talking to visitors. She went to a bedroom on the ground floor which she was to occupy. She did not see the deceased again that night. After the visitors left, she went upstairs between 9.00 and 9.30 p.m. and watched television. About 10.20 p.m. her mother came out of the main bedroom and spoke to her about "the arrangements for the following morning when I was due to fly back to Sydney". About 10.30 p.m. she went downstairs and went to bed. She awoke about 8.00 a.m., not having heard anything during the night.

9. Mrs Murray told the police that after the visitors left she and the deceased ate a meal of chicken and vegetables which he had brought home. It was open to the jury to conclude, as the result of evidence concerning a post-mortem examination of the deceased's stomach, that he must have died or been rendered unconscious within two hours of eating his evening meal. Mrs Murray told the police that after her daughter went out "to get cigarettes or just go for a walk or something" she did not see her again until the morning. She said that she and the deceased went to bed about 9.30 p.m., but got up and watched "that Shogun movie". They went back to bed about 10.30 p.m. She said that the deceased woke her about 4.00 a.m. He was dressed and said that he was going to work. He then left. Mrs Murray said that none of the food from the night before was left and that the deceased did not usually have breakfast when he left for work at an early hour. She said that she went back to sleep but was awakened by the ringing of the telephone. A male voice asked, "Has Ron left yet?" She replied that he had. She then got up to go and find the deceased. Among the vehicles kept at Fifteenth Avenue were a "one ton ute", usually driven by the deceased, as well as the blue Laser hatchback, usually driven by Mrs Murray. The Laser was not there, so she took the utility. Mrs Murray suggested that the deceased took the Laser and that the reason he did so was that the utility was low on petrol. A witness who was staying at premises opposite saw the utility driven away from the deceased's home at about 4.15 a.m. but she had been unable to identify the driver. Mrs Murray told the police that she had been unable to find the deceased. When she returned home, she "put a load of washing on". She also spoke to her daughter. About "8 or 8.30" she and her daughter went to the Coolangatta airport to book Miss Benz's flight back to Sydney. Later that morning she drove her daughter back to the airport. Mrs Murray said that she made many attempts to contact the deceased during the day but was unsuccessful. Later that night she went to a police station to see if he had been involved in an accident.

10. Apart from the evidence of Mr Saunders, the principal evidence against the respondents and in particular against Mrs Murray consisted in the unexplained removal of a section of carpet from the bedroom occupied by the deceased and Mrs Murray, and the presence of spots of blood on the bedhead, on a power outlet on the bedhead and on a cord which connected a clock radio to the power outlet. These spots of blood belonged to the same blood group as that of the deceased.

11. A carpet layer gave evidence that in May 1987 he had carpeted the main bedroom by laying a single piece of carpet from which a square piece was cut out to allow for a bed base. He also gave evidence that on 11 September 1987 he had carpeted the two flights of stairs and landing which connected the first and second floors. He completed this work about 3.30 p.m. on that day. However, a painter testified that, when he arrived at the premises at 7.15 a.m. on the following morning, there was no carpet on the landing or the top flight of stairs. Four other witnesses also gave evidence that on 13 September there was no carpeting on the top flight of stairs or the landing. When police officers later examined the carpet in the bedroom, they found that the carpet on one side of the bed was no longer part of a single piece and that part of it had been replaced with a section of carpet taken from the top flight of stairs. Moreover, it was open to the jury to find that the replacement work had been done in a rough and amateurish manner. Thus, it was open to the jury to find that, during the night of 11-12 September 1987, someone had removed a section of the bedroom carpet and replaced it in a rough and amateurish manner with a section of carpet taken from the top flight of stairs. When asked by police officers who had removed the carpet from the stairway, Mrs Murray said that it could have been the deceased or a painter. She did not assert that she had seen the deceased replace the carpet in the bedroom. However, she suggested that the deceased became irritated with defective workmanship and that he may have removed the bedroom carpet. No suggestion was proffered as to why he should have waited four months to remove the carpet or why he should have been content to replace work, professionally done, with rough and amateurish work. Moreover, a painter gave evidence that, about 7.20 a.m. on 12 September 1987, he noticed that there was carpet on the lower steps but not on "the second set of steps". When he asked Mrs Murray when the carpeting would be finished, she said, "They should be here today".

12. In support of its case that the deceased had been first attacked in his home at Fifteenth Avenue, the Crown also relied on evidence that a sheet of black plastic found near the body of the deceased had blood on it consistent with it being the deceased's blood and spots of paint on it consistent with it having come from the home at Fifteenth Avenue.

13. Upon the foregoing account of the evidence, the case against Mrs Murray was a strong one even if the conversation with Mr Saunders was excluded. For the purpose of discussing the issues which arise, it will be convenient to examine the evidence in support of the Crown's claim that the deceased was first attacked in the bedroom at Palm Beach before examining the likely involvement in his murder of the two women seen on the Mundoolun Bridge. However, the case against the respondents is to be considered in the light of the whole evidence. Circumstantial evidence works cumulatively. Its persuasive force increases as individual items of evidence increase in number and their cumulative weight progressively eliminates the reasonable possibility of potential explanations: cf. Reg. v. Kilbourne (1973) AC 729, at p 758.

14. Because of the evidence concerning the post-mortem examination of the stomach of the deceased, the jury were entitled to conclude that he was attacked and rendered unconscious well before 4.00 a.m. and probably at some time before midnight. On that hypothesis, Mrs Murray's statements that the deceased had left for work in the blue Laser at about 4.00 a.m. and that, after receiving a telephone call, she had taken the utility to look for him were false and revealed a consciousness of guilt on her part. When combined with the presence of blood of the same group as that of the deceased on the bedhead, the power outlet and the power cord in the bedroom and the finding, if made, that part of the bedroom carpet was removed during the night of 11-12 September 1987, her consciousness of guilt made a strong case for concluding that the deceased was first attacked in the main bedroom of the home at Fifteenth Avenue and that Mrs Murray was a party to the attack. The presence of the black plastic sheet near the body of the deceased was further evidence that the deceased was first attacked in his own home, for that sheet had blood on it consistent with it being the deceased's blood and paint spots on it consistent with the paint used on the house at Fifteenth Avenue.

15. Moreover, it was open to the jury to find that the deceased was murdered by the two women whom Mr Saunders saw on the Mundoolun Bridge, for it would be an extraordinary coincidence if they were not connected with the murder of the deceased. It seems beyond doubt that the deceased died on the same night that Mr Saunders saw the two women. The medical evidence that he would have died within minutes of sustaining his stab wounds and that he was still alive when he was pushed or thrown into the water, if accepted, proved that the stabbing took place on or in the vicinity of the bridge and that whoever stabbed the deceased pushed or threw his body into the river. The blood-stained bolt, the presence of the gold neck chain of the deceased in the river immediately below the centre of the bridge, and the drag marks on the wooden planking which commenced on the end of the bridge indicate that the deceased was dragged from a vehicle and then thrown or pushed into the river from the centre of the bridge shortly after he was stabbed. In these circumstances, the presence of the blue "Laser or Pulsar ... hatchback type car" at the end of the bridge where the drag marks began and the presence of the two women in the centre of this narrow and dangerous bridge between 3.00 and 3.40 a.m. on the night of the murder give rise to a reasonable inference that they were parties to his death. Indeed, it was open to the jury to find that the deceased was killed minutes before Mr Saunders arrived at the bridge.

16. Moreover, if the jury found that Mrs Murray was a party to an attack on the deceased in the main bedroom at Palm Beach, it would seem inevitable that they would also find that she was one of the two women responsible for putting the deceased's body into the Albert River. The presence of the two women and the blue "Laser or Pulsar ... hatchback type car" at the bridge, the discovery at 5.20 a.m. of the blue Laser, which she usually drove, on fire in a rural area with its numberplates missing, and the false explanation of the use of the utility by Mrs Murray at about 4.30 a.m., when coupled with a finding that she was a party to the bedroom attack, would point irresistibly to her being a party to killing the deceased and then setting fire to the Laser.
The Statement to Mr Saunders was not admissible for the purpose for which the Crown used it

17. At the trial, no objection was taken to the admissibility of the statement made to Mr Saunders. Consequently, the Crown was not required to specify the ground upon which it asserted that the statement was admissible. In his summing up, the trial judge gave the jury no special direction as to the use that they could make of the statement. It was left to them as an item of evidence from which they could conclude that the accused had murdered the deceased. In the Court of Criminal Appeal, the notices of appeal did not raise any question concerning the admissibility of the statement to Mr Saunders. That issue arose in the context of determining whether the convictions of the respondents were unsafe. This apparently took the Crown by surprise; it seems that the Court of Criminal Appeal did not have the benefit of a considered argument from the Crown. However, it is clear that the learned judges of the Court of Criminal Appeal were of the opinion that the statement made to Mr Saunders was hearsay evidence which was admissible only if made by Miss Benz. Since, in their Honour's view, there was no evidence identifying the respondents as the two women on the bridge, they held that the statement was inadmissible against either of them. In this Court, counsel for the Crown contended that the evidence of Mr Saunders as a whole was admissible to prove that Mrs Murray and Miss Benz were "the actual offenders who were there and then engaged in murder". Later, counsel for the Crown said: "It is not only part of the transaction, it was something said by one of the perpetrators in order to conceal what they were doing at the time." He did not, however, tie himself to any precise ground of admissibility. His preferred view was that, although no previous authority precisely covered the case, the statement was made as part of the res gestae. But he contended that "there are a number of bases upon which this is admissible".

18. The statement by the younger woman, "It's all right, my mother's just feeling sick", impliedly asserted that the other woman on the bridge was her mother, and was tendered to prove that fact. It was relied on "testimonially" to establish the relationship of the two women. It was, therefore, a hearsay statement to which the rules governing the admissibility of hearsay statements applied: Walton v. The Queen [1989] HCA 9; (1989) 166 CLR 283, at pp 292, 303; Subramaniam v. Public Prosecutor (1956) 1 WLR 965, at p 970. There is, however, much to be said for the view that the rationale of the exceptions to the rule which prohibits the admission of hearsay evidence is that evidence falling within the exceptions has a high degree of reliability and can be acted upon safely: see Morgan, "The Hearsay Rule", (1937) 12 Washington Law Review 1, at p 12; Morgan, "Hearsay and Non-Hearsay", (1935) 48 Harvard Law Review 1138, at p 1149; Swift, "A Foundation Fact Approach to Hearsay", (1987) 75 California Law Review 1341, at pp 1342, 1346; and see Walton v. The Queen, at pp 293-294. If this is the rationale of the exceptions to the hearsay rule then, notwithstanding the decision in Myers v. Director of Public Prosecutions (1965) AC 1001, a strong case can be made for developing and applying the common law rules of evidence by reference to the principle that hearsay evidence will be admitted when it appears to have a high degree of reliability. However, although counsel for the Crown said that there were a "number of bases" upon which the statement made to Mr Saunders was admissible, he did not argue that the statement was admissible under a general exception to the hearsay rule. He contended that it was within the res gestae exception to the hearsay rule. It is profitless, therefore, to examine whether the statement or part of it was sufficiently reliable to be admissible under a general exception to the hearsay rule.

19. We think that the evidence concerning the statement made to Mr Saunders was admissible and could have been used against the respondents subject to an initial finding by the jury that the two women on the bridge were the murderers and were disposing of the deceased's body when seen by Mr Saunders. Upon making that finding the jury could use the statement as part of the res gestae. The case would then be analogous with the case of a robbery by masked persons where evidence would be admissible as to the names by which those persons called each other during the robbery. But, until there was a finding that what occurred on the bridge was part of the res gestae, the statement to Mr Saunders could not be used as evidence against either of the respondents. Hence, the jury should have been directed that they could not use the statement unless they first found that the two women had killed the deceased and were disposing of his body when seen by Mr Saunders. Thus, it would have been open to the jury to find that the evidence established that the deceased was killed on or in the vicinity of the bridge at or about the time that the two women were there and that whoever killed him later set fire to the Laser. The jury could then have concluded that the only reasonable hypothesis which explained the presence of the two women and their car at the bridge at such an unusual hour was that they had just killed the deceased and were in the act of disposing of his body when Mr Saunders saw them. Upon making that finding the jury could then have used the statement in conjunction with the other evidence to identify the two women as Mrs Murray and Miss Benz. But the jury were not directed that they could not use the statement to Mr Saunders unless they first made such a finding.

20. The statement to Mr Saunders was simply left to the jury as part of the circumstantial evidence on which the Crown relied to prove that the accused killed the deceased. Consequently, it was open to the jury, relying on that statement, to find as one of the circumstances of the case that there was a relationship of mother and daughter between the two women on the bridge and then use that circumstance in conjunction with all the other evidence to draw the ultimate conclusion that the deceased was killed by Mrs Murray and Miss Benz on or near the bridge. One of the purposes for which the statement to Mr Saunders was used at the trial, therefore, was to prove that the killing had taken place between 3.00 and 3.40 a.m. on 12 September 1987 on or near the bridge. Hence, the statement to Mr Saunders was relied on as part of the proof of the res gestae. Its use and, therefore, its admissibility has to be justified on that basis. However, to admit the statement as part of the res gestae when one of the purposes of its tender was to establish the res gestae is to reason in a circle. Cases on res gestae such as Ratten v. The Queen (1972) AC 378 and Reg. v. Andrews (1987) AC 281 do not go far enough to justify the admissibility of the statement for the purpose of using it in the way that the Crown did at the trial. Accordingly, the statement was not admissible for the purpose for which the Crown used it. Unless, by reason of other evidence, it was found to be part of the res gestae, the statement fell within the general prohibition against the admission of hearsay evidence.

21. In our opinion the evidence of the statement made to Mr Saunders was not admissible for the purpose for which the Crown sought to use it at the trial. As we have pointed out, the evidence of Mr Saunders concerning the statement was admissible for a more limited purpose. Strictly speaking, therefore, the evidence concerning the statement was admissible, and the Court of Criminal Appeal was in error in holding that it was inadmissible. However, the trial was fundamentally flawed by the way in which the evidence concerning the statement was left to the jury.

22. In the circumstances, special leave should be refused. The evidence was used at the trial for an inadmissible purpose. Consequently, the convictions of the respondents could not be restored even if special leave to appeal were granted. In the new trial of the charges against Mrs Murray, it will be open to the Crown to tender the evidence for the limited purpose to which we have referred. Hence, no purpose would be served by granting special leave in her case. In the case of Miss Benz it would not be proper to grant special leave to the Crown for the purpose of setting aside her acquittal and ordering a new trial so that the Crown could have the opportunity to use the evidence on a different basis from that on which it was used at the first trial: cf. King v. The Queen [1986] HCA 59; (1986) 161 CLR 423. Only in very exceptional circumstances will this Court grant special leave to the Crown to appeal against an order of acquittal entered by an intermediate appellate court: Davern v. Messel [1984] HCA 34; (1984) 155 CLR 21. The policy of the law is so firmly set against interfering with an order of acquittal that the case must be truly exceptional before an ultimate appellate court will set aside an order of acquittal entered by an intermediate court of appeal.

23. Special leave to appeal should be refused with costs.

ORDER

Application for special leave to appeal refused with costs.