Walton v R [1989] HCA 9; (1989) 166 CLR 283 (9 February 1989)

HIGH COURT OF AUSTRALIA

WALTON v. THE QUEEN [1989] HCA 9; (1989) 166 CLR 283
F.C. 89/007

Evidence

High Court of Australia
Mason C.J.(1), Wilson(2), Deane(3), Dawson(2) and Toohey(2) JJ.

CATCHWORDS

Evidence - Criminal - Hearsay - Murder - Witness deposing that deceased informed him of arrangement to meet accused on date of murder - Another witness deposing to conversation in which deceased identified caller as accused - Admissibility - Relevance to deceased's state of mind.

HEARING

Adelaide, 1988, August 25.
Canberra, 1989, February 9. 9:2:1989
APPEAL from the Supreme Court of South Australia.

DECISION

MASON C.J. I agree with Wilson, Dawson and Toohey JJ. that the application for special leave should be granted and the appeal dismissed. The facts and the relevant details are set out in their Honours' reasons for judgment.

2. The applicant's challenge to the admissibility of the evidence from the Crown witnesses Rhonda Bowett, Brian Harvey, Mary Stitt and Paul Nicholas has to be considered in the light of the Crown case, in particular the evidence given by other witnesses. The Crown case was that the applicant murdered the deceased Lorraine Ellen Croad on 5 December 1985, pursuant to a plan which he had discussed with his fiancee, Cindy Bragg, whom he married shortly afterwards. The Crown alleged that the object of the plan and the motive for the murder was to obtain the custody of the deceased's two children, Michael and Kim, the applicant being the father of Kim, and to obtain the proceeds of an insurance policy in his favour over the life of the deceased.

3. There was evidence from Miss Bragg, the applicant's alleged accomplice in executing the plan, that on 4 December 1985 the applicant told her that he had arranged to meet the deceased at the Elizabeth Town Centre at 7.00 p.m. on the following evening. He arranged with Miss Bragg to exchange his car for hers because he thought that her car would be less conspicuous. She went to the Centre at the time arranged, but was unable to find the applicant's car.

4. Later that evening, at about 11.30 p.m., he arrived at the place where he was living covered in blood. He told her that he had picked up the deceased at the bus station at the Elizabeth Town Centre just after 7.00 p.m., that they had driven to a hotel and later into the country. He described how he had killed the deceased with a rock and a hammer. He said that he had placed her body in a ditch beside the road.

5. Miss Bragg also gave evidence that on 10 December she and the applicant went looking for the deceased's body without success. This was because the applicant believed that, unless the body was discovered, he would have difficulty in establishing his claim to the insurance moneys. As a result Miss Bragg made two telephone calls to the police and one to a television station indicating the general whereabouts of the body.

6. The applicant denied the account of events given by Miss Bragg. For the purposes of considering the applicant's argument in support of the application for special leave to appeal, it is important to keep in mind Miss Bragg's evidence of the applicant's admission on 4 December 1985 that he had arranged to meet the deceased at the Elizabeth Town Centre at 7.00 p.m. on the following evening and his later admission that he met her there. The applicant denied making these admissions. He gave evidence on oath, denying the account of events given by Miss Bragg and any involvement in the deceased's death. He denied specifically that there was any arrangement to meet the deceased on 5 December and that there was such a meeting.

7. The critical evidence from the four Crown witnesses was tendered to corroborate the evidence of Miss Bragg that there was an arrangement for a meeting and that the meeting did take place. The evidence of two of the four witnesses also tended to establish that the deceased travelled by bus to the Town Centre on 5 December. Mrs Stitt gave evidence that the deceased told her that she was going to meet the applicant at the Town Centre to buy presents for the children and that she was going to the Centre by bus. A bus ticket was found in a pocket of the deceased's clothing when her body was discovered. A bus driver gave evidence that the ticket was sold by him on 5 December 1985 on a run which included a stop at which the deceased might have been expected to board the bus. A bus on that run would have arrived at the Town Centre stop just before 6.50 p.m. if it were on schedule.

8. The applicant's objection to the evidence of the four witnesses, so far as it bears on these issues, is that it is hearsay. If, for the moment, we put to one side other complications relating to the evidence of Rhonda Bowett, the objection is that the testimony of the witnesses is hearsay because each witness was deposing to a statement or statements by the deceased that she was going to meet the applicant at the Town Centre. The statement by the deceased deposed to by Mrs Stitt, referred to in the preceding paragraph, serves to illustrate the nature of the evidence to which the objection is taken. The applicant submits that the evidence is a classic example of hearsay - the statement is relied on as evidence of the truth of what is asserted, namely, that there was an arrangement for a meeting between the applicant and the deceased on the day or evening in question at the Town Centre and that there was such a meeting. The Crown disputes that it relies on the evidence in this way. Rather, it says that the evidence goes to establish what the deceased's intention was at the time and that from this intention, once established, the jury could properly infer that the deceased went to the Town Centre and met the applicant. Viewed in this way, the evidence is circumstantial as well as testimonial and, being circumstantial, it stands outside the hearsay rule.

9. The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose is not excluded by the rule. Thus, evidence of a relevant out-of-court statement is admissible evidence of the maker's knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue: Reg. v. Blastland (1986) AC 41. Similarly, a person's statements or declarations are an accepted means of proving his intentions in circumstances where it is material to prove what those intentions were. As Mellish L.J. remarked in Sugden v. Lord St. Leonards (1876) 1 PD 154, at p 251:
"(W)herever it is material to prove the state of a
person's mind, or what was passing in it, and what
were his intentions, there you may prove what he
said ..."
author's intentions at the time the statement was made. Evidence of the making of the statement may be given by the author himself or, in the case of an oral statement, by any person who heard it made.

10. Statements by a person about his intentions or state of mind are often admitted into evidence, whether described as an exception to the hearsay rule or as original evidence: see Peipman v. Turner (1961) NSWR 252; Nash v. Commissioner for Railways (1963) SR(NSW) 357, at p 360; Dobson v. Morris (1986) 4 NSWLR 681; Thomas v. Connell [1838] EngR 286; (1838) 4 M & W 267, at p 269 [1838] EngR 286; (150 ER 1429, at p 1430); Brodie v. Brodie (1861) 4 LT 307; Lloyd v. Powell Duffryn Steam Coal Company, Limited (1914) AC 733, at p 751. Wigmore on Evidence, Chadbourn rev. (1976), ss1715, suggests that such statements are an exception to the hearsay rule on the ground that a statement about a person's intentions is direct and testimonial, whereas conduct indicative of such intentions is indirect and circumstantial. But the better view is that evidence of such statements is not merely hearsay. Even when the testimony proffered is not that of the maker of the statement, but that of a person who heard the author make the statement, it is original evidence. It is because the making of the statement has independent evidentiary value in proving the author's intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness's testimony does not infringe the hearsay rule. It is original evidence rather than an exception to the hearsay rule: Lloyd, at pp 751-752; Dobson, at pp 681-682; Nash, at p 360. It would be otherwise if a contemporaneous statement were not admissible evidence of the author's intentions. Then testimony by another that he heard the author make the statement would be hearsay because it would be tendered merely for the purpose of proving the truth of what the statement asserted. Since the statement is admissible as original evidence, there is no requirement that the evidence also satisfy the criteria for admissibility under the res gestae rule.

11. It is not and could not be suggested that the testimony of the witnesses in the present case is inadmissible because the statements were made otherwise than in the presence of the applicant. The Crown tendered the statements, not on the ground that the applicant adopted them or acquiesced in them, but on the footing that they tended to establish a fact relevant to a fact in issue.

12. The question then is whether the Crown is correct when it submits that evidence of the deceased's intention to travel to the Elizabeth Town Centre on the evening of 5 December is a foundation from which the jury could reasonably infer that the deceased travelled to the Town Centre and met the applicant there. The authorities are in a state of disarray. In Reg. v. Wainwright (1875) 13 Cox CC 171 the Crown sought to tender evidence from a witness that the deceased girl with whose murder the accused was charged told the witness that she was going to the accused's premises. Cockburn C.J. rejected the evidence on the ground that "(i)t was only a statement of intention which might or might not have been carried out." And in R. v. Thomson (1912) 3 KB 19 in a prosecution for abortion on a woman who died, the defence sought to tender evidence of a statement by the deceased of her intention to perform the operation on herself and of subsequent assertions that she procured her own miscarriage. On appeal it was held that the evidence was rightly rejected as hearsay. No distinction was drawn between the statement of intention and the subsequent assertions.

13. On the other hand in Reg. v. Buckley (1873) 13 Cox CC 293, where the issue was whether the accused murdered a police officer on the night of his death, the Crown tendered a report by the police officer to his superior that the deceased "had had private information that the prisoner was at his old game of thieving again, and that therefore the deceased intended to watch his movements that night". Lush J. admitted the evidence.

14. It is perhaps possible to explain these conflicting decisions by reference to the nature of the particular statement sought to be proved, that in Buckley amounting to conduct on the part of the deceased and thus being circumstantial rather than assertive in character, the others being assertive and testimonial and so falling within the hearsay rule. But the distinction between conduct and statement is both artificial and difficult. It is preferable to treat Buckley as providing support for the proposition that out-of-court statements which tend to prove a plan or intention of the author are admissible, subject to remoteness in time and indications of unreliability or lack of probative value.

15. The topic has been much discussed in the United States. The discussion has centred on Mutual Life Insurance Co. v. Hillmon [1892] USSC 186; (1892) 145 US 285. There a suit to enforce life insurance policies was brought by the wife of the insured, Hillmon. The principal issue was whether Hillmon had died. A body had been found at Crooked Creek and the question was whether the body was that of Hillmon or that of one Walters. The trial judge excluded letters written by Walters to his family from Wichita shortly before the alleged disappearance of Hillmon and Walters stating that Walters was leaving Wichita with Hillmon and travelling in the direction of Crooked Creek. It was held on appeal that they were admissible on the footing that they were relevant to the question in controversy, namely whether the author departed from Wichita in the company of the insured, being evidence of intention "lending probability to the conclusion that the purpose was fulfilled": Shepard v. United States [1933] USSC 135; (1933) 290 US 96, at p 105. In Shepard, Cardozo J. said (at pp 105-106) of Hillmon:

"The ruling in that case marks the high water line
beyond which courts have been unwilling to go. It
has developed a substantial body of criticism and
commentary. ... Declarations of intention,
casting light upon the future, have been sharply
distinguished from declarations of memory, pointing
backwards to the past. There would be an end, or
nearly that, to the rule against hearsay if the
distinction were ignored."

16. The admissibility of evidence of statements of intention to do an act as proof that the act was subsequently undertaken rests on probability. It is for the tribunal of fact to decide whether it will infer that the author of the statement carried out his intention. As Jessel M.R. recognized in Sugden v. Lord St. Leonards, at p 242, the degree of probability will vary from case to case; in some cases it will be high, in others low.

17. In this case, as in Hillmon, there is the additional problem that the statements related not only to the future action of the deceased, who was the maker of the statements, but also to the future action of the applicant. The deceased stated that she was going to the Town Centre to meet the applicant. The basis of the objection to receiving the statements as evidence of the future action of the applicant was forcefully expressed by Traynor J. in his dissenting opinion in People v. Alcalde (1944) 148 P 2d 627, at p 633, that the trial judge in a murder case erred in admitting evidence that the deceased said that she was going out with Frank (the accused) on the evening of her murder. Traynor J. said:

"A declaration of intention is admissible to show
that the declarant did the intended act ... A
declaration as to what one person intended to do,
however, cannot safely be accepted as evidence of
what another probably did. ... The declaration of
the deceased in this case that she was going out
with Frank is also a declaration that he was going
out with her, and it could not be admitted for the
limited purpose of showing that she went out with
him at the time in question without necessarily
showing that he went with her."

18. In Hillmon the problem was academic because it was common ground that Hillmon went to Crooked Creek. In the present case, there was independent evidence from Miss Bragg that the applicant had told her that he had arranged to meet the deceased at the Town Centre at 7.00 p.m. on the night in question. It is the conjunction of this independent evidence of the making of the arrangement between the applicant and the deceased and the evidence of the deceased's intention to travel to the Town Centre to meet the applicant that provides a foundation for the inference that they went to the Town Centre and met there. It would make little sense to reject the deceased's statements on the ground that they relate to the future action of another when the statements evidence her belief that the person she was to meet was the applicant. After all, her belief that she was to meet the applicant made it the more probable that she travelled to the Town Centre.

19. Accordingly, subject only to the particular complications relating to the evidence of Rhonda Bowett, the evidence of the four witnesses was relevant and admissible. The outstanding issue for consideration is therefore whether Miss Bowett's evidence was admissible for the purpose of proving that the applicant was the person at the other end of the telephone with whom the deceased and the child Michael spoke. This evidence consisted of three main aspects.

20. First, the witness stated that the deceased had called out to the child Michael after answering the telephone "Michael, daddy's on the phone and -". This statement clearly constituted hearsay to the extent that it was tendered in order to prove the identity of the caller, since it amounts to an express assertion as to that person's identity. The trial judge, however, seems to have regarded the statement as evidencing the deceased's belief and, as such, forming an integral part of the statements concerning intention. He therefore admitted the statement, whilst warning the jury not to use the statement as evidence of the identity of the caller. I am not persuaded that the trial judge erred in admitting the statements when he warned the jury in strong terms not to use them as evidence of the identity of the caller.

21. Secondly, the witness stated that Michael spoke on the telephone and said in particular "Hello daddy". The objection made to the admissibility of this part of Miss Bowett's evidence is based upon the assumption that the statement contains an implied assertion by the child as to the identity of the caller and the conclusion that this assertion amounts to inadmissible hearsay. An implied assertion is one which can be inferred or implied from a statement or from conduct, and will generally not be deliberately intended by the author. It may take the form of conduct or, as here, statements, but in either case the same principles should be applied with respect to the admission in evidence or rejection of the material since each mode of assertion is apt to be an equally communicative form of expression.

22. It is necessary to apply the same rules regarding admissibility to both implied and express assertions. Any other approach would lend itself to artificial and confusing distinctions. However, where an assertion is not made directly by the words or actions of a person, but is derived by implication from those words or actions there will, depending on the relevant circumstances of the case, often be special considerations relevant to the determination of admissiblity.

23. The hearsay rule should not be applied inflexibly. When the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay. It must be borne in mind that the dangers against which the rule is directed are often very considerable, as evidenced by the need for the rule itself. But especially in the field of implied assertions there will be occasions upon which circumstances will combine to render evidence sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight which should be placed upon it, notwithstanding that in strict terms it would be regarded as inadmissible hearsay.

24. In the present case the extreme unlikelihood of concoction on the part of the child would have been a factor favouring admission of the statements. The lack of opportunity for cross-examination of the child as to his perception or understanding would have been a factor pointing in the opposite direction. Often in the case of an implied assertion the first factor will be of sufficient weight to justify the trial judge in admitting the evidence as reliable for the purposes of evaluation by the jury.

25. To this extent it can be said that the hearsay rule is less rigorous in its application to implied assertions than it is in the case of express assertions. It is for the trial judge to decide whether or not a particular implied assertion is of a kind to which the rationale underlying the hearsay rule would be relevant. If the judge determines that an assertion is express or is otherwise one which it would be dangerous to admit as hearsay, then the ordinary rules of hearsay and the various exceptions to the general exclusionary rule will then be applied. But where the assertion is one made by implication only, it is necessary for the judge to balance the competing considerations in order to determine admissibility, since the dangers associated with hearsay evidence will not all necessarily be present. In very rare cases it may be that such an approach will be appropriate also for an express assertion, for the same reasons, but it will be uncommon for a situation to arise in which an express assertion is made which does not come within a recognized exception to the hearsay rule and yet which despite being tendered as proof of what it asserts would not offend the basis of that rule. In particular, an express assertion will often lend itself more readily to a suspicion of concoction.

26. The House of Lords has approved an approach which places emphasis upon the spontaneity of an assertion (as evidence that it was not concocted) rather than upon the contemporaneity of that assertion to the occurrence to which it relates: Reg. v. Andrews (1987) AC 281, at pp 300-301, adopting the view of the Privy Council in Ratten v. The Queen (1972) AC 378, at pp 388-391. These cases relate to the doctrine of res gestae, but in truth the extension of the scope of that rule necessarily affects the scope and operation of the hearsay rule. The decisions therefore accord with the views which I have expressed.

27. The trend of the English cases was perhaps recognized, although not specifically endorsed, by Dixon J. in Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle [1940] HCA 44; (1940) 64 CLR 514. After comparing the English and American approaches, his Honour went on to say (at pp 531-532):

"(T)hough the general tendency in England is to
restrict the principle to the reception of
statements forming an integral part of the
transaction considered as a whole and to reject the
doctrine that spontaneous declarations are
admissible as an exceptional medium of proof, yet
English decisions do show some reliance on the
greater trustworthiness of statements made at once
and without reflection in support of their
admissibility."

Since then the Judicial Committee in Ratten has emphatically rejected the proposition that, in order to be admissible, the statements must form an integral part of the transaction. Lord Wilberforce, delivering the advice of the Judicial Committee said (at p 389):

"The possibility of concoction, or
fabrication, where it exists, is on the other hand
an entirely valid reason for exclusion, and is
probably the real test which judges in fact apply.
In their Lordships' opinion this should be
recognised and applied directly as the relevant
test: the test should be not the uncertain one
whether the making of the statement was in some
sense part of the event or transaction. ... As
regards statements made after the event it must be
for the judge, by preliminary ruling, to satisfy
himself that the statement was so clearly made in
circumstances of spontaneity or involvement in the
event that the possibility of concoction can be
disregarded. Conversely, if he considers that the
statement was made by way of narrative of a
detached prior event so that the speaker was so
disengaged from it as to be able to construct or
adapt his account, he should exclude it."

28. Later, after reviewing the relevant authorities, including Thompson v. Trevanion [1728] EngR 9; (1693) Skin 402 (90 ER 179), Brown v. The King [1913] HCA 70; (1913) 17 CLR 570, Adelaide Chemical and People v. De Simone (1919) 121 NE 761, Lord Wilberforce observed (at p 391):

"These authorities show that there is ample
support for the principle that hearsay evidence may
be admitted if the statement providing it is made
in such conditions (always being those of
approximate but not exact contemporaneity) of
involvement or pressure as to exclude the
possibility of concoction or distortion to the
advantage of the maker or the disadvantage of the
accused."

This statement of principle, with which I entirely agree, accords with the American approach as Dixon J. described it in Adelaide Chemical (at p 531).

29. However, it does not accord with the subsequent statements of Barwick C.J. (with whom Stephen and Jacobs JJ. agreed) in Vocisano v. Vocisano [1974] HCA 14; (1974) 130 CLR 267, at p 273. The Chief Justice in that case expressed the view that statements made on an occasion when they are unlikely to be concocted are not for that reason admissible, and went on to emphasize the need for contemporaneity rather than "spontaneity or involvement" for the purposes of the res gestae doctrine. His Honour sought to explain the decision in Ratten in these terms, despite the statements of Lord Wilberforce quoted above. However, the Chief Justice's comments were clearly obiter and were prefaced by the remark that the case in question was not an appropriate occasion to discuss whether the Privy Council had intended to change the established law. It was thus logical to seek to explain the decision in Ratten in terms of the law as it had been previously understood but this does not prevent this Court from considering the issues suggested by Ratten on an appropriate occasion. Accordingly, Vocisano is not compelling authority to the contrary of the views which I have expressed.

30. In the present case it would clearly have been open to the trial judge, pursuing the approach I have explained, to admit the evidence of Michael's statement for the purpose of identifying the maker of the telephone call. The fact that he told the jury that the evidence could not be relied upon for that purpose indicates that had it not been for the need to admit the remaining parts of the conversation, he would not have admitted evidence of Michael's statements. However, in the circumstances of the case, there is no reason for thinking that the jury would not have acted on the instruction that his Honour gave with respect to the use to which Michael's statements could be put, and accordingly the reception of the evidence did not give rise to any miscarriage of justice.

31. The third aspect to Miss Bowett's evidence is analogous to the second, and relates to the implied assertion as to identification of the accused by the words and expressions used by the deceased on the telephone during the relevant call. What I have said regarding the statements of Michael is equally applicable here. The fact that the words and expressions in question did not directly identify the accused may be a factor which would reduce their probative value sufficiently to tip the balance in favour of prohibiting the use of this evidence for the purpose of identification, but this would have been a question for the trial judge to decide. In this case the evidence was relevant as original evidence of the intention of the deceased and her arrangement with the applicant, and was thus admissible for that purpose. However, the use of that evidence for the additional purpose of identification of the maker of the telephone call was a separate matter calling for independent consideration along the lines already discussed.

32. The trial judge clearly directed the jury not to use the statements made by the deceased and Michael for purposes of identification of the accused. There was ample alternative evidence upon which the jury could have relied in reaching its verdict and there is no reason for thinking that his Honour's directions were not heeded. In the result, no miscarriage of justice can have resulted from the fact that the evidence of Miss Bowett was admitted even though at least one part of that evidence was inadmissible for the purpose of identifying the accused.

33. In the result I would grant special leave to appeal and dismiss the appeal.

WILSON, DAWSON AND TOOHEY JJ.: On 4 July 1987 the applicant was found guilty of the murder of Lorraine Ellen Croad. An appeal against his conviction was dismissed by the Court of Criminal Appeal of South Australia and he now applies for special leave to appeal to this Court.

2. The applicant and the deceased had lived together for some two years but had separated in February 1985. The deceased had two children, Michael and Kim. The applicant was the father of Kim. After the separation, the applicant went to live with another young woman named Cindy Bragg. He became engaged to her and in fact married her nine days after the deceased was murdered on 5 December 1985.

3. The prosecution case was essentially based upon the evidence of Miss Bragg. She said that the applicant and she had discussed a plan which the applicant had to murder the deceased in order to gain custody of the two children, who had remained with the deceased, and to obtain the proceeds of an insurance policy in his favour over the life of the deceased.

4. Miss Bragg gave evidence that on 4 December 1985, the applicant told her that he had arranged to meet the deceased at the Elizabeth Town Centre at 7 o'clock on the following evening. He arranged with Miss Bragg to exchange his car for hers at the Centre because he thought that her car would be less conspicuous. Miss Bragg said that she went to the Centre at the time arranged, but that she was unable to find the applicant's car. She said that she drove home in her own car.

5. According to Miss Bragg's evidence, the applicant arrived home at some time around 11.30 p.m. on the same evening covered in blood. He told her that he had picked the deceased up at the bus station at the Elizabeth Town Centre just after 7 o'clock and that they had driven to a hotel and later into the country. The applicant then gave her a detailed account of how he had killed the deceased by first stabbing her and then hitting her with a rock and a hammer. He said that he had put the deceased's body in a ditch beside the road.

6. Miss Bragg gave evidence that she helped clean blood from the applicant's car, washed his clothing and subsequently disposed of a rock and some beer bottles which had been in the car. She said that on 10 December 1985 she and the applicant went looking for the deceased's body but could not find it. The applicant was concerned that if the body were not discovered he would have difficulty in claiming the proceeds of the insurance policy. The applicant and Miss Bragg decided that she should make some telephone calls in an effort to expedite the discovery of the body. She made two telephone calls to the police and one to a television channel indicating where the body might be found.

7. The deceased's body was found on 19 December 1985. It had been severely battered about the head and there was damage to other parts of the body. The head injuries were consistent with having been inflicted by means of a rock and a hammer. Scientific evidence established that the body must have been placed in the ditch in which it was found not later than sunrise on 6 December 1985.

8. The applicant gave evidence on oath, denying that there was any arrangement to meet the deceased on 5 December 1985 and denying any meeting. He also denied the account given by Miss Bragg and any involvement in the death of the deceased.

9. As we have said, the prosecution was reliant upon Miss Bragg's evidence in establishing its case. Indeed, the prosecutor in his opening address said that if the jury were not satisfied that she was telling the truth, they should acquit the accused. On her own evidence, Miss Bragg, who was given immunity against prosecution, was an accomplice. The trial judge warned the jury that if they concluded that she was an accomplice, they should scrutinize her evidence with the greatest of care having regard to the danger of convicting upon the uncorroborated evidence of an accomplice. He directed the jury that there was no evidence capable of amounting to corroboration. Be that as it may, there was other evidence against the applicant, the admission of some of which forms the basis of this application for special leave to appeal.

10. Before she met the applicant and for a short time after the applicant had commenced to live with her, the deceased had occupied a house in Sissman Street, Elizabeth Fields. On one side her neighbours were a couple named Daniel and Mary Stitt and on the other side a woman named Marlese Harvey and her children, one of whom was named Brian. At the time of her death the deceased had moved back to Sissman Street with her two children and was living with Daniel and Mary Stitt. Living near Sissman Street was a thirteen year old girl named Rhonda Bowett, who was in the habit of visiting the deceased and her children after school.

11. Rhonda Bowett gave evidence that she was at the Stitts' house on about 4 December 1985. She said that the telephone rang and the deceased answered it, saying "Hello, I was about to call you." According to Rhonda Bowett there was some conversation on the telephone and the deceased called out for Michael, who was then three years of age, saying to him "Michael, daddy's on the phone and - ". Michael then spoke on the telephone. The witness heard him say "Hello daddy" and "Yeah, I've been good". The boy spoke to the person on the other end of the line for about a minute or a minute and a half and the conversation ended with his saying "Bye". Rhonda Bowett's evidence was that the deceased then resumed her conversation on the telephone and agreed to meet the person on the other end of the line at the Elizabeth Town Centre on the following Thursday evening. During the course of the conversation the deceased told the person to whom she was speaking that she would be wearing bright clothes. She also told him that the witness, Rhonda Bowett, was there "mucking around with Kim", the deceased's younger child, "on the floor". The deceased ended the conversation by saying "Bye". The deceased then told the witness that the person on the telephone was the applicant and that he wanted to meet her at the Centre. There was evidence that Michael called the applicant, and no one else, "daddy".

12. Brian Harvey, who was fifteen years of age at the time of the deceased's death, said that he was at the Stitts' house at about 5.30 p.m. on 5 December 1985. He gave evidence that the deceased said to him that "she was going down to catch the bus, she was going to meet Paul at the Centre and she was going to go to the Kariwara Hotel to talk about Kim going into kindergarten". She indicated that "Paul" was Paul Walton, the applicant.

13. Mary Stitt gave evidence that when she returned home in the late afternoon of 4 December 1985 she spoke with the deceased who said that she had no money but that she was going out to buy presents for the children at the Elizabeth Town Centre on the following night. On the following day, 5 December 1985, the deceased, according to Mrs Stitt, told her that she was going out to meet the applicant at the Elizabeth Town Centre to buy presents for the children and that she was going to the Centre by bus.

14. Paul Stanley Nicholas was a friend of the deceased and was with her at the Stitts' house on the evening of 4 December 1985. He gave evidence that the deceased told him that on the following day she was going shopping with the applicant at the shopping centre at Elizabeth and was going to discuss a number of things with him.

15. A bus ticket was found in a pocket of the deceased's clothing when her body was discovered. Evidence was given by a bus driver that the ticket was sold by him on 5 December 1985 on a run which included a stop accessible to the deceased. A bus on that run would have arrived at the Elizabeth Town Centre bus stop just before 6.50 p.m.

16. The evidence of Rhonda Bowett, Brian Harvey, Mary Stitt and Paul Nicholas was admitted at the trial notwithstanding that objection was taken on behalf of the applicant to its admission. However, the learned trial judge in his summing up charged the jury that as a matter of law there was no evidence that the applicant rang the deceased on 4 December 1985. He said:

"Lorraine is dead, Michael is too young and they,
and the person who made the call of course, were
the only people who spoke on the phone who might be
able to identify the maker of that telephone call.
In particular you will recall that Rhonda did not
answer the phone and did not speak to the caller,
nor did Brian answer the phone, nor did Brian speak
to the caller."

Later his Honour returned to the subject and said:

"But I must direct you, ladies and gentlemen, that
it would be wholly impermissible, completely wrong,
for you to use the statements attributable to
Lorraine and indeed the statements attributed by
Rhonda Bowett to little Michael as evidence that it
was Paul Walton on the phone on that occasion."

Otherwise, the evidence of the four witnesses, Rhonda Bowett, Brian Harvey, Mary Stitt and Paul Nicholas of what was said by the deceased was left with the jury upon the basis that it explained why the deceased left the Stitts' house when she did and why she caught a particular bus. The jury was instructed that the deceased's intentions and expectations were relevant and that her utterances to or in the presence of these four witnesses were some evidence tending to prove her state of mind at the time the respective conversations took place. The jury were warned that, whilst the intentions and expectations of the deceased were one thing, they must not treat the deceased's statement as evidence that she did in fact meet the applicant in accordance with them.

17. It is convenient to put to one side the evidence of Rhonda Bowett and to deal first with the evidence of Brian Harvey, Mary Stitt and Paul Nicholas. Their evidence was to the effect that the deceased told each of them that she was going to meet the applicant at the Elizabeth Town Centre. That evidence was tendered for the purpose of showing the state of the deceased's mind at the time she set out from the Stitts' house on 5 December 1985. Her intention at that time was relevant because it might be inferred that she acted in accordance with her intention. There was other evidence that she did in fact do so, significantly the bus ticket found on her body. That, of course, would not be sufficient to establish that the deceased met the applicant at the Centre on 5 December 1985, but there was other evidence to that effect. First, there was the applicant's intention expressed in the form of the plan of which Miss Bragg gave evidence. And then there was the applicant's confession to Miss Bragg that he did meet the deceased on that evening and his account to her of subsequent events.

18. When a person's state of mind is relevant, evidence tending to prove that fact is admissible. That evidence may, of course, take the form of conduct on the part of the person whose state of mind is in question from which the state of mind might be inferred. But it might also take the form of statements made by the person or by another from which a similar inference might be made. An example of statements made by another being admissible in evidence upon this basis is to be found in Subramaniam v. Public Prosecutor (1956) 1 WLR 965, a case in which the appellant was convicted in Malaya of being illegally in possession of ammunition. His defence was that he had been captured by terrorists and was at all times acting under duress. It was held by the Privy Council that the trial judge was in error in ruling out, as hearsay, evidence of a conversation between the terrorists and the appellant. The evidence was admissible, not to prove the truth of any statements made by the terrorists, but as bearing upon the state of mind of the appellant. As was observed at p 970:

"The fact that the statement was made, quite apart
from its truth, is frequently relevant in
considering the mental state and conduct thereafter
of the witness or of some other person in whose
presence the statement was made. In the case
before their Lordships statements could have been
made to the appellant by the terrorists, which,
whether true or not, if they had been believed by
the appellant, might reasonably have induced in him
an apprehension of instant death if he failed to
conform to their wishes."

The evidence excluded in that case was, therefore, admissible.

19. Evidence of a statement or statements made by the very person whose state of mind is in question may be similarly admissible. In Ratten v. The Queen (1972) AC 378 the Privy Council held that evidence given by a telephonist of statements made on the telephone by the deceased shortly before she was shot were admissible upon the trial of her husband for murder to show that she was in a state of fear or emotion at the time. The evidence was not hearsay, being admissible as evidence of a fact relevant to an issue. At p 387 Lord Wilberforce, in delivering their Lordships' reasons, observed:

"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."

20. In Reg. v. Hendrie (1985) 37 SASR 581 the South Australian Full Court held that upon a trial for murder evidence was rightly admitted of a conversation, deposed to by thyband of the deceased, between the husband and the deceased shortly before her death. The conversation consisted of a discussion about the conversion of a window into a door in a bedroom. The work was to be done by the accused, who was a painter and decorator. Evidence of the conversation was led to prove how it was that the deceased went to the bedroom with the accused without any apparent signs of struggle. King C.J., with whom the other members of the court agreed, said at p 585:

"It is well established law that a person's
state of mind may be proved by contemporaneous
statements made by that person. Such statements
are not hearsay because they are not adduced for
the purpose of proving the truth of the statements.
They are original circumstantial evidence tending
to establish the state of mind. Their evidentiary
value is derived from experience of human behaviour
which indicates that people tend to express their
intentions or their states of mind. For that
reason what a person says is some evidence of what
he is thinking. It is circumstantial evidence
which may form a basis for an inference as to his
intention or other state of mind."

21. Whilst it may be well established that statements will found an inference concerning a state of mind, there are relatively few reported cases on the subject and its limits have not been fully explored: see generally Cross on Evidence, 6th ed. (Cross and Tapper, 1985), pp 465-475. It may be true in some cases to say that statements made by a person indicating his state of mind involve no element of hearsay. For example, in Hughes v. National Trustees, Executors and Agency Co. of Australasia Ltd. [1979] HCA 2; (1979) 143 CLR 134 evidence of statements by a testatrix about her son's misconduct was held to be admissible to prove her state of mind when making her will, but not to prove that the misconduct actually occurred because:

"Such statements are not evidence of the facts
they assert: they provide evidence only of the
subjective attitude or beliefs of the testator or
testatrix." (per Barwick C.J. at p 137)

But in other cases a person's statements about his state of mind will only have probative value if they are truthful and accurate and to rely upon them is to rely to some extent upon the truth of any assertion or implied assertion contained in them. To that extent an element of hearsay may be said to be present. This case is an example. But the element of hearsay need not necessarily preclude evidence of that kind being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted. The distinction between the two approaches is one which can be fine, but it is one which in principle ought to be drawn.

22. Conduct, no less than declarations, may contain an assertion or implied assertion. The question may then arise whether evidence of the conduct falls within the hearsay rule. Clearly it may in the case of express assertion as, for example, where sign language is used. In the case of implied assertion the question has not been finally resolved: see Cross on Evidence, op. cit., pp 472-475; 3rd Aust. ed. (Byrne and Heydon, 1986), pp 737-742; cf. Ahern v. The Queen [1988] HCA 39; (1988) 62 ALJR 440; 80 ALR 161. The problem may be illustrated by Holloway v. McFeeters [1956] HCA 25; (1956) 94 CLR 470, a Wrongs Act claim, in which it was sought to adduce evidence of the flight of a hit-and-run driver as an admission of negligence by conduct and thus as an exception to the hearsay rule. Such an admission would have been admissible against the driver but the action was against a nominal defendant and Dixon C.J. and Kitto J. held it was not admissible against him. But Dixon C.J. drew a distinction between the evidence as an admission and the same evidence "simply as one of the circumstances of the deceased's death to be taken into account in reaching a conclusion as to the manner of its occurrence" (at p 476).

23. Most actions contain an implied assertion of some sort on the part of the actor, but evidence is ordinarily given of such conduct without a thought for the hearsay rule. Nevertheless it was long ago suggested that the scope of the hearsay rule may extend to such evidence. There is the celebrated case of Wright v. Doe d. Tatham [1837] EngR 853; (1837) 7 Ad & E 313 (112 ER 488) (Exchequer Chamber); [1838] EngR 710; (1838) 5 Cl & F 670 (7 ER 559); 4 Bing (NC) 489 (132 ER 877) (House of Lords). In that case letters to a testator, apparently written upon the basis that he was of sound mind, were tendered to prove his testamentary capacity. In the Exchequer Chamber Parke B. said at pp 385-386 (ER at p 515):

"But the question is, whether the contents of
these letters are evidence of the fact to be proved
upon this issue, - that is, the actual existence of
the qualities which the testator is, in those
letters, by implication, stated to possess: and
those letters may be considered in this respect to
be on the same footing as if they had contained a
direct and positive statement that he was
competent. For this purpose they are mere hearsay
evidence, statements of the writers not on oath, of
the truth of the matter in question, with this
addition, that they have acted upon the statements
on the faith of their being true, by their sending
the letters to the testator."

And in the decision of the House of Lords there is also authority for the proposition that implied assertions by conduct may fall within the hearsay rule.

24. However, as we have said, not all conduct involving an assertion, expressed or implied, is treated as hearsay and held to be inadmissible in evidence. If it were, the available evidence in many cases would be seriously depleted. The distinction to be drawn is that to which we have referred, namely, the distinction between evidence of conduct which, even though it may contain an assertion, is tendered as a relevant fact or a fact relevant to a fact in issue and is therefore admissible and evidence of conduct which has no probative value other than as an assertion and is therefore not admissible.

25. An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle [1940] HCA 44; (1940) 64 CLR 514. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten, at pp 389-390; Reg. v. Andrews (1987) AC 281, at pp 300-301. See also Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle, at p 531. Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v. Vocisano [1974] HCA 14; (1974) 130 CLR 267, at p 273. But if sometimes there is an element of hearsay in evidence which is led of statements made by a person other than a witness for the purpose of founding an inference concerning that person's state of mind, the justification for disregarding that element of hearsay may be thought to be of a similar kind. Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable. On the other hand, if a statement by a person about his state of mind is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay.

26. It is in that light that one may understand cases such as Wright v. Doe d. Tatham and Reg. v. Wainwright (1875) 13 Cox CC 171. In the latter case, the Crown sought to lead evidence of a statement of intention made by the deceased as to where she was going as she left her home on the day of her death. The trial judge, Cockburn L.C.J., refused to admit the evidence, observing (at p 172) that it was only a statement of intention which might or might not have been carried out. Similarly in Teper v. The Queen (1952) AC 480, a case in which the appellant was convicted upon a charge of maliciously and with intent to defraud setting fire to his shop, a police constable gave evidence, which was admitted for the purposes of identification, that some time after the fire had commenced and some distance from it, a woman had shouted "Your place burning and you going away from the fire". Immediately thereafter, according to the constable, a black car containing a fair man resembling the accused came from the direction of the fire. It was held that the words spoken by the woman did not form part of the res gestae and ought to have been excluded as hearsay. The words spoken were a pure assertion which was put forward for the sole reason of proving the truth of what was said and not otherwise to found any relevant inference.

27. In the present case, the statements made by the deceased to Brian Harvey, Mary Stitt and Paul Nicholas were admitted upon the basis that they constituted conduct on the part of the deceased from which her state of mind at the relevant time could be inferred. They were not admitted as hearsay evidence and it was made plain to the jury that their probative value lay in the fact of their having been made rather than in the truth of any assertion or implied assertion contained in them. To the extent that there was an element of hearsay in the evidence of those statements, it was, we think, for the reasons which we have given, permissible for the trial judge to have disregarded it as he did. In his summing up he adapted and recited the passage from the judgment of King C.J. in Hendrie, which we have set out above, and he described the statements in question as circumstantial evidence which might form the basis of an inference. He said that they were "some evidence" tending to prove the state of mind of the deceased. In our view, the trial judge rightly admitted those statements in evidence and correctly explained to the jury the use which they might make of them.

28. The trial judge also admitted in evidence the statements made to and in the presence of Rhonda Bowett by the deceased. He instructed the jury upon the use which might be made of those statements in the same terms as he instructed them in relation to the statements made by the deceased to the other three witnesses. In this he was correct. He also instructed the jury that there was no evidence of the identity of the telephone caller. That was not entirely correct in that there was the evidence given by Miss Bragg that the applicant had told her that he had arranged to meet the deceased. That evidence may have been sufficient to found an inference that the applicant was the telephone caller, but the instruction given by the trial judge was in the context of statements made by the deceased and the failure to mention Miss Bragg's evidence in that context could hardly have operated to the disadvantage of the applicant. Whilst the statements by the deceased were clearly admissible to establish the belief of the deceased that the person whom she was arranging to meet was the applicant, they were otherwise merely hearsay assertions concerning the identity of the caller on the other end of the line. In this instance the hearsay element of the deceased's statements was separable and the trial judge was right to separate it and exclude it from the jury's consideration by telling them that it constituted no evidence of the identity of the caller as opposed to evidence of the deceased's belief as to his identity.

29. On the other hand, the words uttered by the boy on the telephone were no more than hearsay and were therefore, strictly speaking, inadmissible. Whilst it is possible that in some circumstances a greeting may constitute circumstantial evidence from which the identity of the person greeted can be inferred, that is not necessarily the case. In this case, particularly as the child's greeting and subsequent conversation followed immediately upon the assertion by his mother that the person to whom he was about to speak was "daddy", the value, if any, of what the child said lay in the truth of the implied assertion that the person to whom he was speaking was in fact "daddy". Cf. Teper; Reg. v. Gibson (1887) 18 QBD 537. However, it added little if anything to what was said by the deceased and the jury were adequately warned against using it to identify the caller. No substantial miscarriage of justice can have arisen from its admission.

30. Otherwise there was no error in the admission of the evidence in question nor was there any error in the manner in which the trial judge dealt with that evidence in his charge to the jury. We would grant special leave to appeal but dismiss the appeal.

DEANE J: The facts and issues involved in this appeal are set out in the judgment of the Chief Justice and the joint judgment of Wilson, Dawson and Toohey JJ. I agree with much of what is written in those judgments. In particular, I agree that evidence of a relevant out of court statement is admissible to prove the maker's knowledge or state of mind in a case where that knowledge or state of mind is itself a fact in issue or provable (as against the party against whom the evidence is tendered) as a fact relevant to a fact in issue. Where I respectfully differ from their Honours is that I have come to the conclusion that evidence of the deceased's statements of intention made in the absence of the applicant was not admissible against the applicant in the present case for the reason that the deceased's intention to go to the Elizabeth Town Centre for the purpose of meeting the applicant was neither a fact in issue nor provable against the applicant as a fact relevant to a fact in issue. In my view, the subjective intention of a person to go to a particular place or to meet a particular person at that place is not, of itself, admissible to prove, as against that other person, that the first person in fact went to that particular place or that the first person in fact met that other person. At least where intention is not itself a fact in issue, one person's subjective intention to do or to say something is not admissible as evidence to prove, as against another person, that the thing was done or said (see per Cockburn L.C.J., Reg. v. Wainwright (1875) 13 Cox CC 171). Were it otherwise, every litigant could seek to call in aid his earlier statements of his intention to do or say something as proof, as against a stranger to those statements, that he did or said it and to buttress his case with the evidence of all those to whom he had asserted what his intentions were. The unfairness of requiring the other party to litigation, let alone an accused on a murder charge, to do battle with the intangible shadows of such subjective intentions on the basis of some generalization (such as that people commonly do what they say they will) seems to me to be self-evident.

2. It follows that the evidence of Mr. Brian Harvey, Mr. Paul Nicholas and Mrs. Mary Stitt to the effect that the deceased had said to him or her that she intended to go to the Elizabeth Town Centre to meet the applicant should, in my view, have been rejected. That evidence was not inadmissible on the ground that it was mere hearsay in so far as the subjective intentions and expectations of the deceased were concerned. It was inadmissible for the reason that evidence of the subjective intentions and expectations of the deceased was not admissible, as against the applicant on his trial for her murder, to prove that the deceased had done what she intended to do or that her expectations about meeting the applicant had been fulfilled.

3. The evidence of Miss Rhonda Bowett of what was said on the telephone by the deceased falls into a different category. It was, for the reasons which follow, direct, and not hearsay, evidence that the applicant and the deceased had in fact arranged to meet at the Elizabeth Town Centre on the evening in question. Clearly, the fact that such an arrangement had been made was, if established, a material and admissible piece of circumstantial evidence against the applicant. Indeed, as I followed the argument, no suggestion to the contrary was advanced on his behalf.

4. It is a fact of contemporary life that many important conversations take place on the telephone. Inevitably, any witness (other than a participant in the conversation) of what was said in such a telephone conversation will usually be able to give evidence of but one side of the conversation. The evidence of such a witness of what was said by one party to the conversation will ordinarily not be admissible as evidence against another person unless there is evidence establishing or warranting the inference that that other person was the other party to the conversation. If the hearsay rule were to be inflexibly applied, it would preclude the identity of the other party to the conversation being established by contemporaneous statements of the first party even though made in the course of the actual conversation. The hearsay rule should not, however, be inflexibly applied but should be qualified where the circumstances are such that its inflexible application would confound justice or common sense or produce the consequence that the law was unattuned to the circumstances of the society which it exists to serve. There is plainly something to be said for the view that, at least in some circumstances, the hearsay rule should be qualified so as not to preclude the receipt of evidence of contemporaneous statements made by one party to a telephone conversation (either in the course of the actual conversation or immediately before or after it) which disclose that the other party to the conversation was the person against whom it is sought to lead otherwise relevant and admissible evidence of that part of the conversation which was overheard. It is, however, unnecessary to pursue that question for the purposes of the present case since there was other evidence which, if accepted by the jury, plainly enabled the inference to be drawn that the applicant was the other party to the telephone conversation of which Miss Bowett gave evidence.

5. The foundation for the evidence of Miss Bowett is to be found in the evidence of the applicant's alleged accomplice, Miss Bragg. Miss Bragg gave evidence that on 3 December 1985 the applicant had told her that he would "give (the deceased) a call" and "make arrangements to pick her up" and that on 4 December 1985 the applicant had told her that he had made arrangements to meet the deceased at the Elizabeth Town Centre at 7 o'clock on the following evening (i.e. 5 December 1985). The evidence of Miss Bowett was to the effect that she had been present when, on or about 4 December 1985, the deceased had had a telephone conversation in the course of which the deceased had actually made such an arrangement to meet with the other party to the conversation on Thursday night (i.e. 5 December 1985) in terms which were completely consistent with that other party being the applicant. In these circumstances, the evidence of Miss Bragg, which the jury accepted, provided a firm foundation for the inference that the other party to the telephone conversation (of the deceased) which Miss Bowett overheard was the applicant. That being so, Miss Bowett's evidence of what was said by the deceased in the course of that telephone conversation was admissible against the applicant. In that regard, the position is not, in so far as the admissibility of Miss Bowett's evidence is concerned, significantly different from that which would have existed if Miss Bragg had actually been present and had overheard the applicant's side of the conversation which, on her evidence, the applicant had admitted had taken place between himself and the deceased. Once Miss Bragg's evidence was accepted and the obvious inference was drawn that what Miss Bowett overheard was the deceased's part of the conversation which the applicant had admitted having had with her, Miss Bowett's evidence was direct and confirmatory (albeit incomplete) evidence of the making of the relevant arrangement between the applicant and the deceased. On the other hand, the only relevance of Miss Bowett's evidence of the deceased's statement to her three-year-old son that it was "daddy" on the telephone and of the child's subsequent telephone conversation was to prove the identity of the caller. Strictly, if the hearsay rule is to be inflexibly applied, that particular evidence should have been rejected. In all the circumstances and in the light of the trial judge's clear instruction to the jury that that evidence could not be used to identify the caller, however, it plainly could not have given rise to a miscarriage of justice.

6. If the resolution of the appeal were for me alone, it would be necessary to consider whether, in the light of the learned trial judge's warnings to the jury, the wrongful admission of evidence of the three other witnesses of the statements of the deceased to the effect that she intended to meet the applicant at the Town Centre could have led to the occurrence of any "substantial miscarriage of justice" (see, Criminal Law Consolidation Act 1935 (S.A.), s.353(1)). In circumstances where Miss Bowett's evidence of the actual making by the deceased of an arrangement to meet at the Town Centre had been properly received in evidence and in the light of the trial judge's directions, it is arguable that it could not. However, the conclusion of the majority of the Court that the evidence of those other witnesses was admissible against the applicant makes it unnecessary that I form any firm view in that regard.

ORDER

Application for special leave to appeal granted.

Appeal dismissed.