Norris v The State [1979] PGSC 18; [1979] PNGLR 605 (7 December 1979)

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CRIMINAL LAW - Evidence - Plea of guilty - Evidence of circumstances relevant to punishment - Hearsay evidence - Objection by accused - Formal proof required - Criminal Code, s. 608.

EVIDENCE - Admissibility - Hearsay - Criminal law - Plea of guilty - Evidence of circumstances relevant to punishment - Objection by accused - Formal proof required - Criminal Code, s. 608.

The appellant (accused) was convicted on a plea of guilty of the manslaughter of his de facto wife. In the proceedings on sentence, and against objection, the prosecution called evidence from a half-sister of the deceased and tendered three diaries in the handwriting of the deceased the contents of which indicated a “torrid” and frequently brutal relationship with the appellant. The trial judge held himself satisfied that the appellant was a “man of dangerous passion and temper” and sentenced him to five years’ imprisonment with hard labour.

N1>(1) Section 608 of the Criminal Code which provides that “the court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the sentence proper to be passed”, does not entitle the court to admit hearsay evidence during the proceedings on sentence, where that hearsay evidence is objected to and/or not conceded.

N1>(2) Where during proceedings on sentence, hearsay evidence is objected to and/or not conceded then it must be formally proved, or rejected completely.

N1>(3) In the circumstances the trial judge had erred in law in admitting and relying upon the evidence in the diaries of the deceased, when sentencing the appellant.

N1>(4) Without the evidence in the diaries of the deceased the sentence of five years’ imprisonment with hard labour was manifestly excessive.

N1>(5) The appeal against sentence should be allowed and a sentence of four years’ imprisonment substituted.

This was an appeal against severity of a sentence of five years’ imprisonment with hard labour imposed on a plea of guilty on a charge of manslaughter.

RAINE DCJ: This is an appeal by a man who pleaded guilty to a charge of unlawfully killing his de facto wife. It is an appeal against sentence only. The appellant was sentenced to be imprisoned with hard labour for a period of five years.

The appellant is twenty-six years of age and obviously an intelligent man, he was educated to form IV and at the time of the offence was earning a considerable amount of money. He is a married man, living apart from his wife and has several children. He had prior convictions but they were all in mid 1967 when he was only a boy and none of them involve offences of violence.

The death of the deceased, who was a young woman, was caused by blows to her head or face and death was caused by extensive brain haemorrhages. The deceased did not die immediately and following the assault on her did not appear for a time to be seriously affected.

For reasons that will become apparent it is important to set out the whole of the learned trial judge’s remarks on sentence. His Honour said:

“The accused has pleaded guilty to the manslaughter of his mistress Kathleen Paul, a young educated woman with whom he had formed a liaison having left his wife and family of five children apparently shortly after the last child was born.

The liaison as so frequently happens proved a difficult one to maintain for it was the subject of pressure on the one hand from the embittered wife and from the other character weaknesses of the parties.

Evidence was called on the allocutus to assist my approach to sentencing. Defence counsel submitted that the manslaughter resulted from an unfortunate isolated incident that was uncharacteristic in a happy union; that sentence of imprisonment should be light, because the prisoner has suffered sufficiently in the loss of the person he loved. The prisoner is a man with a good work reputation as a store manager in a plumbing business. He was earning K15,000 per annum.

In reply to the case for leniency, the prosecution has called evidence from a half-sister to the deceased; and has tendered three diaries in the handwriting of the deceased which paint an eloquent picture of the torrid life she and the prisoner led.

I am satisfied that far from the fatal attack being an isolated incident it was one of many. Most strongly attached to one another sexually as they were, their relationship was frequently embittered by his, (I gather from the diaries) causeless jealousy and brutality of behaviour which drove him to ‘belt up’ as it was expressed, and bash the deceased on many occasions from which she suffered black eyes and bruising. On one occasion he poured hot water on her causing blistering to her breast.

I am satisfied that the prisoner is a man of dangerous passion and temper which induced him to use his undoubted powerful physique in bouts of cruelty.

He is a man who as a child in 1967 was convicted on two counts of B.E.S. [breaking, entering and stealing] and two of illegally using a m/v [motor vehicle]; but has not been under police notice since, it seems.

I consider his crime calls for a marked personal deterrent and also for an element of public deterrence. Resort to violence seems to be increasing rather than decreasing in this community.

He is sentenced to five years I.H.L. [in hard labour].” (The emphasis is mine.)

The portions in his Honour’s remarks on sentence that I have emphasized make it abundantly clear that his Honour was very much influenced by the diaries to which he refers. These diaries were admitted by the learned trial judge against the objection of Mr. Cory of counsel for the accused, who now appears for him before us. I have read some of the diary entries. The deceased was obviously a well educated young woman and she writes a very good hand. The diaries are neat and tidy and apart from references to the appellant’s behaviour, contain a description of the deceased’s general social life.

When the appellant pleaded guilty before his Honour he had nothing to say when called up for sentence and Mr. Cory then addressed. From his Honour’s notes it appears that after addressing for a short time counsel called a Mr. Wilson who was the manager of the business where the appellant was employed as a store manager. After his short evidence Mr. Cory resumed his address and, inter alia, said that the appellant and the deceased were in love, that there were minor arguments but that the overall picture was that the appellant was happy with the deceased and that he felt remorse and regret that he had killed the woman he loved. When Mr. Cory’s address finished Mr. Egan, the Public Prosecutor, indicated to the trial judge that he wished to take issue on the fact that apart from minor arguments the overall relationship was a happy one, and he indicated that he had diaries in the handwriting of the deceased. These are the diaries that I have referred to. His Honour’s note reads:

“Egan matters of mitigation. Spoke to Cory last Tues. — told alleging certain things over last 9 month. Told he disputed that.

‘may receive such evidence as it seeks fit.’ Carter 557 (4 Ed) Relevant to know whether tempestuous rel-ship.”

Later Mr. Egan tendered the diaries and Mr. Cory objected to them. It will be noted that Mr. Egan referred his Honour to Carter, Criminal Law of Queensland (4th ed., 1974), at p. 557. At that page part of the footnote of s. 650 of the Queensland Code appears. It is similar to s. 608 of the Criminal Code Act 1974 in this country. The portion of the footnote to which Mr. Egan referred reads:

The trial was held at or about the time that Judge Carter’s 5th ed. arrived in Papua New Guinea and no doubt this is why Mr. Egan quoted from the 4th ed., and the likelihood is that his Honour had the 4th ed. before him. Since the 4th ed. which was brought out in 1974 there has been a decision of the Supreme Court of Western Australia, Morse v. The Queen[dccxxxviii]⁴ and Judge Carter has added a reference to this to his footnote to s. 650 in the 5th ed. (1979) which now reads:

“The provisions of the last paragraph of this section enable any information which can be put before the court to be put before it in any manner which the court will accept and accordingly the court may accept hearsay evidence. See R. v. Marquis[dccxxxix]⁵. In Gifford v. The King[dccxl]⁶, Dwyer C.J. pointed out that it is not necessary that the testimony should be given on oath and comply with the strict rules of legal evidence. Contrast R. v. Bates[dccxli]⁷, where it was held that matters of belief and hearsay are not admissible evidence on the question of the proper sentence, and Morse v. The Queen[dccxlii]⁸, where Gifford v. The King[dccxliii]⁹, and R. v. Marquis[dccxliv]¹⁰, were explained and it was held that s. 656 of the Western Australian Criminal Code — the corresponding section to this section — did not entitle the judge to receive hearsay information to enable him to pass sentence.”

Morse v. The Queen[dccxlv]¹¹ was a case where an accused man was convicted and sentenced in respect of a drug offence. In the proceedings on sentence and against objection the Crown called evidence from a detective which was clearly hearsay, and which, from a reading of the trial judge’s remarks on sentence, led to the accused’s sentence being heavier than it otherwise might have been. Not only was the evidence objected to, it was contested. The judgment of the Court of Criminal Appeal was given by Burt C.J.[dccxlvi]¹², where the Chief Justice said:

“With respect, that text, expressed as it is in an unqualified way, is not a correct statement of the English law and I do not think that it finds adequate support in Marquis. [Burt C.J. was referring to R. v. Marquis[dccxlvii]¹³.] There are many English decisions both before and after Marquis which would deny any rule expressed in such general and unqualified terms. The full and authoritative statement of the practice in England was made by the Court of Criminal Appeal in R. v. Campbell[dccxlviii]¹⁴.”

His Honour then set out what fell from Lord Alverstone L.C.J. I should add that the Court of Criminal Appeal in Morse v. The Queen[dccxlix]¹⁵ was considering a similar section to s. 650 in the Queensland Code and s. 608 in our Criminal Code Act. As well as following Campbell v. The King[dccl]¹⁶ Burt C.J. followed R. v. Turner[dccli]¹⁷, R. v. Van Pelz[dcclii]¹⁸, R. v. Robinson[dccliii]¹⁹, R. v. Sargeant[dccliv]²⁰ and Weaver v. Samuels[dcclv]²¹.

Burt C.J. is stated in the headnote to Morse v. The Queen[dcclvi]²² to have explained Gifford v. The King[dcclvii]²³ and R. v. Marquis [dcclviii]²⁴. Whilst this is true, it seems to me that it is implicit in the Chief Justice’s judgment that he also largely disapproved of the judgments in these two cases, thus his Honour said[dcclix]²⁵, as to Marquis [dcclx]²⁶:

“Marquis was a case in which the prisoner having been convicted on his own plea of two charges of obtaining money by false pretences asked that for purposes of sentence nineteen similar charges be taken into consideration. The prisoner had signed the form on which the other offences were mentioned but the offences were not put to him by the sentencing judge and he was not asked whether he admitted or denied the accuracy of the information on the form. This the court held ought to have been done and that really was all that was involved in the case. However, at p. 35 of the report Lord Goddard L.C.J. is reported to say[dcclxi]²⁷: ‘The other thing to which I desire to call attention is that the learned recorder seems to have had some doubt whether he could accept what he called “hearsay evidence” of character after conviction. Of course he could, because after conviction the court is always informed of the character which the prisoner bears, and that character is very often proved by a police officer perhaps in Devon referring to convictions which have taken place in Northumberland, or Yorkshire, or anywhere else. He cannot speak of his own knowledge about them, but he can produce the prisoner’s record, and it is always perfectly proper to take into account any information which can be given, either for or against the prisoner, although the matter is not proved with the strictness which would be necessary to prove an issue during the trial. It would be a very unfortunate thing if evidence of that kind could not be given, because it would prevent evidence from being given in favour of the prisoner, and would prevent a police officer from saying: “I have made inquiries of the prisoner’s employer, he works well and his character is good.” After conviction, any information which can be put before the court can be put before it in any manner which the court will accept.’

Those words must, I think, be understood in the context of the case and must be accepted subject to the qualifications which I have mentioned in the other cases to which I have referred, which cases do not support the unqualified words used in Marquis[dcclxii]²⁸ or the unqualified proposition stated in the text of Carter’s Criminal Law.

The view which I have expressed in these reasons is supported in a number of South Australian cases which are collected by Bray C.J. in Weaver v. Samuels [dcclxiii]²⁹.

In my opinion the sentencing judge in the instant case was wrong in receiving the hearsay evidence led by the prosecution and wrong in making the findings, based upon that evidence, that the appellant was ‘financing and aiding professional cannabis dealers’ and that he had ‘decided to go further and obtain heroin for distribution.’”

In R. v. Gabai Vagi[dcclxiv]³⁰ I dealt with a more or less similar situation and followed Weaver v. Samuels[dcclxv]³¹ and a decision of Burbury C.J. in Nash v. Haas[dcclxvi]³². In R. v. Gabai Vagi[dcclxvii]³³, four accused were charged with rape before me and whilst they pleaded guilty they did not admit certain aggravating matters that were contained in the depositions. I held, as stated in the headnote:

“In circumstances where sworn evidence had been given at the committal, not only as to the bare legal ingredients of the crime but also as to aggravating matter, and that aggravating matter was denied in unsworn material before the court, and not contested by the Crown, and the denials were not utterly unreal and in the teeth of the highest probabilities those matters of aggravation to the extent that they were denied ought to be ignored.”

I still adhere to the view that that I held in R. v. Gabai Vagi[dcclxviii]³⁴ and in my opinion it is wrong to admit hearsay evidence during the proceedings on sentence where that evidence is objected to and/or not conceded. Of course, as a matter of practice, in the vast majority of cases neither counsel for the prosecution nor the accused are concerned about the admission of what is often hearsay. Many antecedent reports and many statements made in evidence by police officers as to background are hearsay and there is nothing wrong with this being received if no objection is taken. Often it is helpful to accused persons. Great inconvenience would be caused and much public money wasted if people had to be flown from all over the country to give evidence about uncontested matters. But if the background material as offered is objected to and/or contested then under our system of criminal law the matter must be properly proved and the situation is no different than in the proceedings going to the guilt or innocence of an accused person.

During argument my brother Wilson drew my attention to a further decision of the Supreme Court of South Australia which gives added weight to what I have said. See R. v. Lucky [dcclxix]³⁵.

In my respectful opinion the evidence was wrongly received and I now proceed to consider whether that being so some variation in the sentence should follow.

In my opinion the sentence awarded by the learned trial judge, which was an effective sentence of five years and three months, would have been a very proper one had the evidence in the diaries been properly before him. As I have indicated, the trial judge was clearly affected by what was contained in the diaries. I do not think that some other hearsay evidence given by the witness Anna Tamarua makes very much difference. Putting the diaries aside, is the effective sentence of five years and three months manifestly excessive? In my opinion it is, although I would not reduce the sentence awarded by a great deal. I say this because this was a bad assault on the deceased. This is not one of those unfortunate cases where one angry blow has tragic consequences. There were a number of blows and it is perfectly clear that the appellant, furious at the believed misbehaviour of the deceased, attacked her in quite a vicious way. I would therefore grant leave to appeal, allow the appeal, and reduce the sentence from one of five to one of four years.

KEARNEY J: The appellant sought leave to appeal against a sentence of five years’ imprisonment imposed on him by the National Court after he had pleaded guilty to the unlawful killing of one Kathleen Paul.

Leave to appeal was granted because there was a substantial argument that the National Court had erred on its approach to sentence, and it would not have been just to have left the matter unresolved.

The sole ground of appeal relied on in this application was as is commonly the case, that the sentence was manifestly excessive. The argument, however, was directed to error. In these circumstances, some comment on the proper way to formulate appeals against sentence may be useful.

To succeed in an appeal against sentence an appellant (other than the prosecutor) must persuade this Court that a more lenient sentence was warranted in law and should have been imposed; when so persuaded, this Court must quash, and substitute the sentence which should have been imposed — s. 22 (4) of the Supreme Court Act 1975. In practice, in order to persuade this Court, an appellant will usually be required to show some error on the part of the trial judge, going to sentence; that approach accords with the approach followed by this Court and other appellate courts when reviewing any exercise of discretionary power; see House v. The King[dcclxx]³⁶, R. v. Taylor[dcclxxi]³⁷ and the very full discussion by Clarkson J. in Wanosa v. The Queen[dcclxxii]³⁸. The sentencing power is a discretionary judicial power. If no such error is shown, this Court is unlikely to interfere with the sentence, because a trial judge is usually in a much better position to access the proper sentence than is a court of appeal.

So the question in practice on a sentence appeal is usually this — has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.

Where an identifiable error is relied on as a ground of appeal it should be set out in the notice of appeal, with particulars. An appellant relying upon identifiable error will usually have to show as well that the sentence was manifestly excessive, because otherwise he is unlikely to persuade this Court (as he must, to comply with s. 22 (4) of the Supreme Court Act 1975), that a different sentence “should have been passed”; this is because there is no precise sentencing tariff.

To state in a notice of appeal as the only ground of appeal, that a sentence is “manifestly excessive”, when what in truth is relied on is an identifiable error, conceals the question which this Court will be asked to determine.

In this appeal, the appellant relies upon an identifiable error: he contends that the learned trial judge acted on a wrong principle of law, which led his Honour to take into account on sentence matters which should not have been taken into account. This occurred when his Honour, over-ruling objection by the appellant, admitted into evidence as material relevant upon sentence certain documentary hearsay in the form of the contents of three diaries kept by the victim; and when his Honour allowed in for the same purpose certain verbal hearsay by Anna Tamarua, the half-sister of the victim, being a narration of what the victim allegedly told Anna about certain incidents in the victim’s life with the appellant, including an incident a few days before the fatal assault when the appellant was said to have poured hot water on the victim, causing blisters on her breast. I note that no objection appears to have been taken to the verbal hearsay by Anna.

The appellant said that the erroneous reception of this hearsay material led to further (and crucial) error when his Honour then took it into account on sentence. It is clear that his Honour did take the hearsay into account.

The Deputy Chief Justice has set out in his judgment, which I have had the benefit of reading, the course of the proceedings before the trial judge and his Honour’s remarks on sentence: I need not set them out again. I agree with my brother Raine that the trial judge was “very much influenced” by the material from the diaries; and I think that the account by Anna of hot water being poured on the victim, also had some influence. I think the trial judge relied upon all this material in forming an adverse view of the character of the appellant when he concluded:

“I am satisfied that the prisoner is a man of dangerous passion and temper which induced him to use his undoubted powerful physique in bouts of cruelty.”

And it was as a consequence of that conclusion, I think, that his Honour decided that a “marked personal deterrent” was called for.

The question is, can hearsay form the basis for a finding of fact relevant to sentence?

In terms of the Criminal Code, does the court’s statutory power under s. 608 to “receive such evidence as it thinks fit” on sentence, extend to the reception of hearsay, and, if so, are there any qualifications upon the exercise of that power?

The sentencing stage of a criminal trial is necessarily concerned with the finding of facts; but in that process the clearly defined procedural and evidentiary rules which apply to the earlier stage of determination of guilt, are relaxed. That comes about as a matter of history and there are excellent practical reasons why it should be so; I fully agree with the comments of my brother Raine on the inconvenience and public cost which would be incurred, if the ordinary rules of evidence were applied rigorously at the sentencing stage when no useful purpose would be served. Most of the very useful material now received on sentence, often beneficial to the prisoner, would in practice be excluded. On the other hand, to relax the rules completely is to risk injustice in cases where the prison opposes the material sought to be advanced by the State. The problem is where best to draw the line.

Problems arise where allegations of fact material to culpability, such as circumstances of non-statutory aggravation in the commission of an offence, are not conceded by a defendant who pleads guilty. It is clear that a plea of guilty admits only the essential ingredients of the offence: see the authorities cited in R. v. Gabai Vagi[dcclxxiii]³⁹, a landmark decision in this jurisdiction. Such a plea does not admit any circumstances of aggravation: Powell v. Webberley[dcclxxiv]⁴⁰. It is necessary that any such circumstances of aggravation be proved beyond reasonable doubt: R. v. Gabai Vagi[dcclxxv]⁴¹. There is no onus on a prisoner to prove mitigating circumstances: I agree, with respect, with the view of Bray C.J. in Samuels v. Festa[dcclxxvi]⁴² in that respect. The prisoner will of course have an evidentiary burden as to circumstances mitigating sentence.

In this case, the defence chose to raise from the Bar table the question of the prior relationship between the victim and the appellant, as going to mitigation; the State disputed the account given, and in turn, appeared to rely on the nature of the prior relationship as amounting to aggravation — in any event the trial judge treated the matter as aggravation, by the way he found the facts. The matter being in dispute, it appears to me it could only have been resolved by sworn evidence, bearing in mind the onus of proof; see Nash v. Haas[dcclxxvii]⁴³. The prisoner could not have been forced to testify; but that does not mean that the State could in turn rely on unsworn evidence. It was apparent before trial that the matter was in dispute. If the State found itself unable to adduce evidence on the point, the court should have accepted the account put forward by defence counsel, if it thought that account lay within the bounds of reasonable possibility; see R. v. Beresford[dcclxxviii]⁴⁴.

R. v. Gabai Vagi[dcclxxix]⁴⁵ and the cases cited therein, dealt with the finding of facts relating to the offence charged. The appeal in the present case turns on the finding of facts relating to the offender — an element in his “antecedents”, to use the customary and all-embracing term. I see no reason to draw any distinction between the rules as to proof of these two categories of sentencing facts.

I observe that it is clear law that if a defendant challenges an allegation of a previous conviction put forward in an antecedent report, the State must prove it in a proper manner, for example, by the procedure in s. 33 of the Evidence Act 1975, before the previous conviction can be taken into account: see Ex parte Kelly; Re Teece [dcclxxx]⁴⁶. This is indicative of the court’s general approach to proof, in this area. It would appear, on principle, that proof must be beyond reasonable doubt.

In the result, I consider that information as to the antecedents of a prisoner (in which category I include the information tendered in this case) may be taken into account on sentence, without formal proof provided it is not challenged by the prisoner. If it is challenged, it must either be properly proved, or completely ignored by the sentencing judge. It is, I think, unnecessary to dilate upon the pernicious effects of receiving hearsay into evidence, over objection by the defendant; in the present case, the diary entries had no inherent reliability. All the well-known dangers in the reception of hearsay, were present. I think the approach above has been consistently applied in England by the authorities since R. v. Campbell [dcclxxxi]⁴⁷, and R. v. Marquis [dcclxxxii]⁴⁸, properly understood, is not inconsistent with it. I think, with respect, that R. v. Bates[dcclxxxiii]⁴⁹ strays into error, insofar as hearsay on sentence would be excluded in all circumstances. I think that this approach accurately marks the proper limits of the degree of relaxation of the ordinary rules of evidence, on sentence, to which I referred earlier, and also the limits of the proper exercise of discretion under s. 608 of the Criminal Code.

I might add that, upon this approach, the concluding paragraph of s. 608 of the Criminal Code is in effect construed in the same way as the far more explicit provisions in s. 386 of the Tasmanian Criminal Code, as amended in 1973, except insofar as s. 386(10) of that Code appears to leave to the trial judge a discretion as to the means of proof of challenged material.

Applying the rule to the present case, it is clear that the hearsay was wrongly received and relied on, and the appellant has established the error upon which he founded his appeal. The question then arises, whether a different sentence should have been passed. This Court has continually emphasised the need to deal sternly with crimes of violence, in an attempt to reduce its incidence. In this case, as my brother Raine has said, there was a bad assault, a vicious attack. But if the aggravation based on the hearsay is omitted, the circumstances — involving passion over suspected infidelity — did not warrant five years’ imprisonment. I agree with the view of Williams J. in Joseph Maino v. The State[dcclxxxiv]⁵⁰ that sentences of lesser severity are imposed for convictions for manslaughter where the element of intent to do grievous bodily harm is absent. Here a less severe sentence was warranted and, in my opinion, had the hearsay not been received and acted upon, a sentence of four years’ imprisonment should have been passed.

In my opinion, the appeal should be allowed, the sentence of five years’ imprisonment quashed, and in substitution for that sentence this Court should now impose upon the appellant a sentence of four years’ imprisonment with hard labour.

WILSON J: I have read the judgments of my brothers Raine and Kearney and I agree with the conclusions they have each reached.

I would only add that I consider that the fundamental rules of evidence regarding the reception of hearsay evidence (if it is challenged) apply, in the absence of a statutory provision to the contrary, all through the criminal law and to matters of penalty as well as to matters of guilt or innocence. After all that principle is consistent with the historical and philosophical development of the criminal law in which, generally speaking, nothing is assumed against a person unless there is proof on admissible evidence beyond reasonable doubt.

In Weaver v. Samuels [dcclxxxv]⁵¹, one of several decisions which have emanated from South Australia involving consideration of the procedure to be followed at the pre-sentence stage, Bray C.J., in the context of a case in which the appellant had pleaded guilty before a court of summary jurisdiction, said[dcclxxxvi]⁵²:

“The defendant must be given the benefit of any reasonable doubt on matters of penalty, as well as on matters of guilt or innocence, in the absence of any statutory provision to the contrary. The plea of guilty admits no more than the bare legal ingredients of the crime. Any dispute as to anything beyond this must be resolved on ordinary legal principles, including the presumption of innocence.” (The emphasis is mine.)

I apprehend that Bray C.J. also had in mind the principle, to which I have referred, in R. v. Lucky when his Honour said[dcclxxxvii]⁵³:

“It is of crucial importance that nothing should be taken into account against a convicted defendant except what he admits or what is proved against him by sworn evidence which he has had a chance to test by cross-examination.”

In that context “sworn evidence” must mean admissible evidence. Bray C.J. went on to state[dcclxxxviii]⁵⁴:

“If he [the convicted defendant] disputes any matter of fact alleged in the report [received at the pre-sentence stage], then either that matter must be disregarded by the court or the question must be resolved by the calling of evidence.”

His Honour went on to make it clear that he considered that the principle in question should have application to all reports by probation officers, psychiatric and other reports, police or antecedent reports (and the lists of previous convictions which sometimes accompany them), the opinions of experts, and any other material placed before the sentencing judge. Of opinion evidence, his Honour had this to say[dcclxxxix]⁵⁵:

“Even opinion evidence from experts should not be used against a convicted person if he objects to it without the expert being called: and opinion evidence based on hearsay information obtained in his absence is not evidence against him except by consent (R. v. Reiner[dccxc]⁵⁶; Sych v. Hunter[dccxci]⁵⁷).”

“A judge is not entitled to take into account against a prisoner any facts stated in a police report or in a pre-sentence report, unless they are admitted by the prisoner or proved formally. Such reports contain many matters of hearsay which are not to be taken into account against a prisoner except on his admission of their truth.”

Adapting those words in that case I am satisfied that the learned trial judge in this case was not entitled to take into account against this appellant any facts stated in the deceased’s diaries or other hearsay facts unless they were admitted by the appellant or proved formally. The deceased being dead, she could not have been called to prove either the facts contained in the diaries or the contents of verbal statements she had made. No other admissible evidence was adduced to prove any of the facts which the diaries purported to prove. The appellant, by his counsel, objected to the diaries being admitted. As the diaries contained matters of hearsay, they should not have been received nor should they have been taken into account against the appellant.

The learned trial judge relied upon the inadmissible evidence contained in the diaries. Indeed, he placed considerable reliance upon it. This led his Honour to reach the opinion that the appellant and the deceased had led “a torrid life” in which there had been many attacks and much brutality. His Honour reached the ultimate conclusion that the appellant was “a man of dangerous passion and temper which induced him to use his undoubted powerful physique in bouts of cruelty” and therefore to impose a relatively heavy sentence of imprisonment for the crime of manslaughter. His Honour acted upon a wrong principle and allowed extraneous matters (inadmissible evidence) to affect him (see House v. The King[dccxciii]⁵⁹ most recently followed in Koniel Alar v. The State[dccxciv]⁶⁰). Therefore, in my opinion this appeal should be allowed and the sentence varied.

Excluding from consideration any conclusions adverse to the appellant which might be drawn from an examination of the hearsay evidence, but taking into account all the other circumstances surrounding this crime and appertaining to the appellant himself, it must be said that the accused viciously assaulted the deceased. The appellant is not entitled to the leniency that may be shown to those who commit the crime of manslaughter in a sudden or momentary outburst. A sentence of some years’ imprisonment is called for. An appropriate sentence for this crime, when acting on the material that should properly be relied upon, was four years with hard labour.

For these reasons I agree that this appeal should be allowed and that the sentence of imprisonment with hard labour should be reduced from five years to four years.

Leave to appeal granted. Appeal against sentence allowed. Conviction confirmed but sentence set aside and sentence of four years with hard labour substituted for it.

[dccxxxv] (1951) 35 Cr. App. R. 33.

[dccxxxvi] [1947] WALawRp 17; (1947) 49 W.A.L.R. 97, at p. 99.

[dccxxxvii] (1934) 28 Q.J.P.R. 79.

[dccxxxviii] [1977] W.A.R. 151.

[dccxxxix] (1951) 35 Cr. App. R. 33.

[dccxl] [1947] WALawRp 17; (1947) 49 W.A.L.R. 97, at p. 99.

[dccxli] (1934) 28 Q.J.P.R. 79.

[dccxlii] [1977] W.A.R. 151.

[dccxliii] (1947) 49 W.A.L.R. 97.

[dccxliv] (1951) 35 Cr. App. R. 33.

[dccxlv] [1977] W.A.R. 151.

[dccxlvi] [1977] W.A.R. 151, at p. 157.