In this matter, the Court of Appeal held that, in a trial involving criminal responsibility under s 7(1)(d) or 7(1)(b) of the Criminal Code 1899, evidence given by the primary offender of the primary offender’s own guilty plea is not admissible as evidence of the truth of facts on which the plea was based or the truth of the facts implicit in the plea. Such evidence goes only to the honesty and reliability of the primary offender as a witness.
Sofronoff P and Morrison JA and Buss AJA
31 January, 7 February 2020
The appellant was convicted under s 539 of the Criminal Code 1899 of attempting to procure another to murder her former husband. . It was alleged that her new partner, W, had committed the primary offence of attempting to procure the murder of the appellant’s former husband, S, by another man, N. . The appellant was criminally responsible for this primary offence by operation of s 7(1)(d) or 7(1)(b) of the Code.  W had pleaded guilty in New South Wales to the offence of soliciting S’s murder and received a sentencing discount. .
At the appellant’s trial, W gave evidence of his guilty plea (). Under cross-examination, however, he stated he had never intended that N would actually commit the crime. . W explained that he had pleaded based on the legal advice he received. . The jury was directed that it had to be satisfied W had intended for N to kill S in order for the primary offence to be established. . Critically, the trial judge directed that W’s “plea of guilty [in New South Wales] is evidence of his intention”. , . On appeal, the appellant submitted that the plea was inadmissible for this purpose and that this misdirection resulted in a miscarriage of justice. , .
The leading judgment in the Court of Appeal was delivered by Buss AJA (Sofronoff P and Morrison JA agreeing). Referring to R v Kirkby  2 Qd R 57, his Honour observed that the general rule was that evidence of the conviction of a third party for an offence was not admissible as evidence of the primary offence in the trial of an accused involving responsibility for the offence under s 7(1) of the Code. There was an exception, however, where an accused was on trial as accessory after the fact. –.
In the present appeal, the Crown sought to distinguish Kirkby on the basis that, in this case, W had himself given evidence of his conviction and, secondly, because W’s conviction was only being used as one part of the evidence for determining W’s intent. –. Acting Justice Buss conducted a detailed review of the cases with similar facts. –.
His Honour concluded that W’s evidence of his guilty plea was admissible only as relevant to W’s honesty and reliability as a witness, including whether he had a motive to fabricate evidence implicating the appellant. . The guilty plea was not admissible as evidence of the truth of facts on which the plea was based or the truth of the facts implicit in the plea. . Such evidence, provided by W’s testimony, was inadmissible hearsay. . The Crown had to prove W’s intention by direct evidence from W at trial or by inference from other proven facts. . His Honour thus rejected the Crown’s attempt to distinguish this case from R v Kirkby. .
As defence counsel had not objected to the admission of this evidence at trial, it was necessary to establish its admission had resulted in a miscarriage of justice. . Acting Justice Buss held there was a miscarriage of justice, for the following reasons:
- (1)the Crown was required to prove beyond reasonable doubt that W intended that N should kill S; ;
- (2)the Crown case was not supported by any direct evidence of W’s intention, whereas the defence case was; –;
- (3)W’s evidence as to the guilty plea was hearsay evidence of his formal admission of guilt by plea and was inadmissible as proof of the truth of the facts on which it was based; –158];
- (4)the trial judge was bound to direct the jury in the manner in which the jury could and could not use the evidence of W’s guilty plea; ;
- (5)the trial judge had misdirected the jury that W’s guilty plea could be used as evidence of his intention; ;
- (6)and although defence counsel did not object to the direction, there was no rational forensic advantage flowing from it. .
The proviso was inapplicable as it was not possible to conclude that the jury did not take the guilty plea into account in deciding W’s intention. .
In the result, therefore, the appeal was allowed on this ground and a re-trial ordered. .