Area of Law – Evidence

An Article about Evidence -admissibility of co-accused statement

Admissibility of co-accused record of interview
The record of interview of a co-accused is not admissible against an accused as it is hearsay.

This is an issue that often arises in criminal cases. You find out your co-accused has blamed you in an interview as being the main person responsible. How will that effect your case? Of itself it is not evidence to be led against you. That is a prosecutor can not say “look his co-accused said it was him in the interview” or anything like that. It only becomes a problem on a joint trial when both interviews are played and that can often have an effect on how the jury make their decisions (even though they are directed to look at the issues separately).

Admissibility of co-accused statement on telephone
“The statements were only admissible against Kalajdic if they were made by Italiano with Kalajdic’s authority. That authority could be inferred if Kalajdic and Italiano were acting in combination, that is, if they agreed to blackmail Barker. In Ahern v. R Mason, C.J., Wilson, Deane, Dawson and Toohey JJ. said:

“[W]hen two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others ….”

The admissibility of the evidence depends upon proof of the combination. The criterion is that there must be reasonable evidence of the combination apart from the co-offender’s acts and declarations.Although the question whether such evidence exists is one for the judge alone, in the present case the trial judge left the question to the jury.

He instructed the jury that they were only to consider the evidence of the telephone conversations between Barker and Italiano if they were satisfied beyond reasonable doubt that there was an agreement between Kalajdic, Aisbett and Italiano that the car would be taken forcibly from Barker in order to compel Barker to arrange a loan for Kalajdic’s brother. The trial judge told the jury that there was no direct evidence of any such agreement, and its existence depended upon inference.

His Honour did not identify any evidence from which the inference could be drawn. In my view the only evidence which might be said to relate to a combination to which Italiano and Kalajdic were party consisted of Kalajdic being introduced to Barker by Italiano, Kalajdic taking the car, demanding that Barker secure finance to assist Kalajdic’s brother to purchase a house, giving the car to Italiano and communicating with Italiano in the weeks following the taking of the car. In my opinion the evidence amounted to nothing more than proof of an association between Kalajdic and Italiano concerning the Mercedes Benz 320 CLK. The existence of an agreement between the two and the terms of such an agreement were entirely speculative. In my view the evidence did not provide any basis for inferring that Kalajdic agreed with or authorised the making of threats by Italiano to Barker.”

R v Kalajdic; R v Italiano [2005] VSCA 160 (24 June 2005)


Date: 01/09/2009