R v Baker

The Court unanimously allowed the Crown's appeal and dismissed the cross-appeal. Justice Ellis concurred with Cooke P and Casey J.^[3]

In allowing the Crown's appeal President Cooke famously held,

At least in a case such as the present it may be more helpful to go straight to basics and ask whether in the particular circumstances it is reasonably safe and of sufficient relevance to admit the evidence notwithstanding the dangers against which the hearsay rule guards. Essentially the whole question is one of degree, … If the evidence is admitted the Judge may and where the facts so require should advise the jury to consider carefully both whether they are satisfied that the witness can be relied on as accurately reporting the statement and whether the maker of the statement may have exaggerated or spoken loosely or in some cases even lied. The fact that they have not had the advantage of seeing that person in the witness box and that he or she has not been tested on oath and in cross-examination can likewise be underlined by the Judge as far as necessary.^[4]

Justice Casey reasoned that the Crown's evidence should be admitted on the basis of the 'state of mind' exception to the hearsay rule which had recently been confirmed in a judgment of Lord Bridge in R v Blastland [1986] AC 41,

"It is, of course, elementary that statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or the person to whom it was made. What a person said or heard said may well be the best and most direct evidence of that person's state of mind. This principle can only apply, however, when the state of mind evidenced by the statement is either itself directly in issue at the trial or is of direct and immediate relevance to an issue which arises at the trial."^[5]

In contrast to Gallen J who had seen Mrs Baker's statements of fear at her husband as "rather on the side of establishing a factual situation than of indicating a continuing state of mind"; Justice Casey believed,

"By itself, the fact that the deceased did not invite her husband around to shoot cats advances the Crown case no further, if this is what the jury infers from the evidence of her state of mind. However, that conclusion rebuts the only innocent explanation he has so far given for his visit with a gun and ammunition. Accordingly the evidence of her state of mind becomes directly relevant to the issue of his intentions towards her when he arrived and at the time of the shooting, which appears to have occurred not long afterwards."^[6]

The authors of Cross on Evidence describe the decision in Baker as, "...tantamount to a qualified judicial abrogation of the hearsay rule when evidence is sufficiently cogent and it is thought “reasonably safe” in all the circumstances to admit it, providing that it is evidence which in “common sense and justice most people would think ought to be admitted”.^[7]

Elisabeth McDonald of the Victoria University Faculty of Law noted, "The test proposed by Cooke P in Baker, if read as a general discretion to admit hearsay, having significant implications for oral hearsay offered in criminal cases, was also the first articulation of such a test in the appellate courts of Anglo-American common law jurisdictions."^[8]

Beginning in the late 1980s the Law Commission began to review the area of evidence law with an eye to codifying it. The decision of Baker proved of lasting influence and the test of reliability was incorporated within the general test for the admissibility of hearsay evidence contained in section 18 of the Evidence Act 2006.^[8]