Pollitt v The Queen [1992] HCA 35

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Pollitt v The Queen [1992] HCA 35

ORDER Application for special leave to appeal granted. Appeal dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

1992, Aug. 13 Mason C.J.

Dawson and Gaudron JJ. have set out the facts, the issues and the relevant evidence in this case. I need not repeat them.

I agree with their Honours' reasons for concluding that the trial judge's directions with respect to Denning's evidence were adequate. However, I take a rather different view of the evidence of Mr. and Mrs. Berry. The trial judge allowed this evidence to be led by the Crown not to establish the truth of anything asserted but "as establishing Allen's state of mind at the time he made the statements and [it] demonstrates that he was a party to the agreement to kill Williams, a fact which will be very much an issue in the trial". The Court of Criminal Appeal concluded that the evidence was correctly admitted as tending to prove Allen's involvement with others in the killing of Simpson. The Court endorsed the trial judge's view that Allen's participation in a plan to kill Williams and the allegation that the wrong person was killed were "facts very much in issue" [1] .

1. Reg. v. Pollitt (1990), 51 A. Crim. R. 227, at p. 236.

The critical or essential issue at the applicant's trial was identity. Nevertheless, while the existence of the conspiracy was not in dispute, proof of it was part of the overall case for the prosecution. Accordingly, evidence that the killing was a contract killing, that Allen had entered into an agreement with the applicant to kill Williams and that the killer made a mistake as to the identity of the deceased was relevant. Such evidence would establish a motive for the murder and assist in establishing the identity of the killer. The applicant does not challenge the admission of the Berrys' evidence to the extent to which it relates Allen's remarks and demeanour during his telephone conversation with the caller. However, the applicant submits that, apart from the evidence of what Allen said on the phone and his demeanour when speaking, the other testimony given by the Berrys which recounted Allen's subsequent statement or statements that he had been speaking to the applicant who had made a mistake in doing a job for Allen and wanted nevertheless to be paid should not have been received. The applicant's submission is that the evidence, though relevant, was inadmissible because it infringed the hearsay rule.