Published date01 July 2005
Date01 July 2005
Subject MatterNoticeboard
E&P-9-3-text-proof.pmd NOTICEBOARD
Notices should be sent to Rosemary Pattenden, School of Law, University of
East Anglia, Norwich NR4 7TJ, UK. Email:
Hearsay and intention—Australia
The appellant in Kamleh v The Queen [2005] HCA 2 was convicted of murdering a
prostitute and her pimp while visiting the pimp’s flat with an accomplice. The
accomplice, who was convicted of manslaughter, was tried separately and was not a
witness. Before the High Court of Australia, the appellant argued that the trial judge
had breached the hearsay rule by admitting three out-of-court statements made by
the accomplice. The court found that two of the statements involved no hearsay
because they were not relied on for their truth. The first, which had been made to a
third party after the crime, was relevant because it put the accomplice in the flat
when the crime took place: he knew something that only someone there at that
time could have known, namely, that the television was turned up to full volume. As
there was a substantial body of evidence, including statements by the appellant to
the police, that the appellant and his accomplice were continuously together on the
night of the murder this evidence was probative of the appellant’s presence at the
flat at the time of the shooting. The second contested statement was the record of
the accomplice’s interview with the police. The accomplice had given an alibi which
tallied with that of the appellant but which the prosecution could show was false.
This statement was not used to prove that what the accomplice had said was true
but to prove that the two men had concocted a false alibi for the time of the shooting
out of a consciousness of guilt.
The admissibility of the third statement, which had been made before the shooting,
was more problematic. In it the accomplice had said that he and the appellant were
planning to catch up with the pimp to settle something. Previously in Walton v The
Queen (1989) 166 CLR 283 the High Court of Australia had allowed X’s statement that
he intended to meet Y at a particular place to be treated as evidence that X and Y met
there. Used for this purpose, Mason CJ (at 288) had declared, the statement of intention
was original evidence and the presumption of continuance enabled the inference to
be drawn that that appointment had been kept. Wilson, Dawson and Toohey JJ (at
302) had acknowledged that an element of hearsay was involved but this had not
stopped them upholding the admissibility of the statement. Deane J, in a dissenting
(2005) 9 E&P 217–238

judgment, had said that the statement was not admissible to prove either that X had
acted on the stated intention or that X and Y had met and that it was not otherwise
relevant on the facts. The appellant in Kamleh did not challenge Walton v The Queen,
but argued that the accomplice’s intention was irrelevant. There being no challenge
to Walton v The Queen, Gleeson CJ and McHugh J held that the accomplice’s statement
of intention together with the larger body of evidence supported the conclusion that
the accomplice had acted on his intention and had been at the pimp’s flat at the
time of the murders. This was significant because of the other evidence that the
appellant had been with him at all relevant times. The rest of the High Court had
reservations about the majority’s reasoning in Walton v The Queen and how the
principles derived from it applied to the instant case, but were satisfied that the
evidence against the appellant was so overwhelming that even if the accomplice’s
statement of intention were inadmissible, there had been no substantial miscarriage
of justice. Hayne J said ([2005] HCA 2 at [33]):
Where an out of court assertion is tendered to demonstrate that the
person making the assertion then had a particular intention, the line
between proof of the fact asserted and proof of the fact that the assertion
was made is difficult to draw. No less importantly, the fact that the
person then had a particular intention must often find its relevance to
the facts in issue in a chain of reasoning which begins by accepting that
the expressed intention not only was truly held but would probably be
acted on. In the present case, it is not self-evident how a statement of
the co-accused’s intention was relevant to any issue.
Heydon J (ibid. at [38]) said that it was ‘highly controversial whether … statements [of
intention] are generally admissible to prove that the intention was carried out or that
an intention to do an act with a second person is evidence that the act was performed’.
Wigmore (whose views are not canvassed in the judgment) expressed the opinion (see
Wigmore on Evidence, Chadbourn rev. (Boston, 1976) §§1714, 1726) that a statement of
intention offered in proof that the intended act took place is introduced for a hearsay
purpose, but that there is a common law hearsay exception that permits this (a
theory apparently endorsed in the English Criminal Justice Act 2003, s.118 (1) §4(c)).
Wigmore thought (above at §1725) that a statement of intention should not be
admissible on the issue of whether the declarant followed the intended course of
action unless the court is satisfied that the stated intention is genuine and the
Supreme Court of Canada acted on his advice in R v Starr (2000) 190 DLR (4th) 591 at
[5–8], [168] by making admissibility conditional on the statement appearing ‘to have
been made in a natural manner and not under circumstances of suspicion’. For
further discussion of the issues, see Phipson on Evidence, 16th edn (Sweet & Maxwell:
London, 2005) §34.35.

Meaning of ‘beyond reasonable doubt’—United Kingdom (Scotland) and
European Court of Human Rights

In Scots law there are two standards of proof: the balance of probabilities for civil
litigation and proof beyond reasonable doubt for the prosecution in criminal trials.
The European Court of Human Rights regularly says that it applies a standard of
‘beyond reasonable doubt’ when it assesses evidence in the cases that are brought
before it. Adali v Turkey, Application No. 38187/97, 31 March 2005, at paras 216, 219 is
a recent example. In Napier v The Scottish Ministers 2005 CSIH 16 it was argued that a
Scottish court should follow the European Court of Human Rights and apply the
criminal standard of proof when, as in the instant case, a breach of Article 3 (freedom
from torture) is alleged in civil proceedings. This argument was rejected: the
appropriate standard of proof, the Lord President said, is the normal standard of
proof applied to civil cases.
Despite the identical wording, the European Court of Human Rights’ standard has a
different significance from the Scots criminal standard of proof. In Napier it was
pointed out that the Strasbourg standard:
is designed to protect and compensate those whose Convention rights
have been violated, not to determine guilt; it follows that the
presumption of innocence does not apply to applications to the European
Court of Human Rights as it does in Scottish criminal proceedings;
does not require as high a degree of probability as the common law
criminal standard of proof (Nachova v Bulgaria, Application No. 43577/98,
26 February 2004, at para. 166);
is applied flexibly taking into account evidentiary difficulties; for example,
the European Court of Human Rights may conduct an inquiry, reverse
the evidential burden of proof or rely on presumptions of fact.
The Lord President said that the European Court of Human Rights is entitled to
determine for itself what standard to apply to assess evidence and that domestic
courts in the United Kingdom are not bound to have regard to the European Court of
Human Rights’ ‘internal law’ (2005 CSIH 16 at [19]).
Napier confirms once again the impossibility of assigning a precise meaning to the
phrase ‘beyond reasonable doubt’. The correct standard of proof to apply in human
rights cases is, however, more problematic than the judgment acknowledges. Even if
the burden of proof in Strasbourg case law is not identical to the common law
criminal standard of proof, it does not follow that the Strasbourg standard is always
irrelevant when a domestic court has to decide whether a Convention right has been
breached. If the domestic court, applying the civil standard of proof, finds no breach,

there is a possibility that the case will go to the European Court of Human Rights. In
the light of the margin of appreciation, the European Court of Human Rights
generally leaves it to the national courts to assess whether in the circumstances of a
particular case there has been a breach of a Convention right but where deprivation
of life or torture are alleged the European Court of Human Rights adopts a more
robust approach. In Adali v Turkey above at paras 213–214 (a decision handed down
after Napier v The Scottish Ministers) the European Court of Human Rights said:
Though the Court is not bound by the findings of domestic courts, in
normal circumstances it requires cogent elements to lead it to depart
from the findings of fact reached by those courts … The same principles
apply mutatis mutandis where no domestic court proceedings have taken
place because the prosecuting authorities have not found sufficient
evidence to initiate such proceedings. Nonetheless, where allegations

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT