R v Eastman (No 24)
[2017] ACTSC 348
•27 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 24) |
Citation: | [2017] ACTSC 348 |
Hearing Date(s): | 27 June 2017 - 28 June 2017 |
DecisionDate: | 27 November 2017 |
Before: | Kellam AJ |
Decision: | See [59] - [60] |
Catchwords: | CRIMINAL LAW - EVIDENCE - Judicial Discretion to admit or exclude evidence - Admissibility of coincidence evidence relied upon by prosecution - whether .the coincidence evidence is relevant pursuant to s 55 Evidence Act2011 (ACT) - whether the similarities in the events and or circumstances relied on by the prosecution are such that it . is improbable that the events happened coincidentally - whether the coincidence evidence will have significant probative value - operation of s 98 Evidence Act 2011 (ACT) - whether the probative value of the coincidence evidence substantially outweighs any prejudicial effect on the defendant pursuant to s 101 Evidence Act 2011 (ACT) - some of the coincidence evidence found to be relevant and to have significant probative value that outweighs prejudicial effect. |
Legislation Cited: | Evidence Act 2011 (ACT) ss 55, 98 and 101 |
Cases Cited: | DSJ v The Queen; NS v The Queen [2012] NSWCCA 9; 259 FLR 262 IMM v The Queen [2016] HCA 14; 257 CLR 300 R v Ceissman [2010] NSWCCA 50 R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 R v Miles [2013] ACTSC 48 |
Texts Cited: | S Odgers SC, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016) |
Parties: | The Queen (Crown) David Harold Eastman (Accused) |
Representation: | Counsel Mr M Thangaraj SC, Ms M Campbell and Mr K Lee (Crown) Mr G Georgiou SC, Mr M Stanton and Ms L Line (Accused) |
| Solicitors Office of the ACT Director of Public Prosecutions (Crown) ACT Legal Aid Office (Accused) | |
File Number(s): | SCC 111 of 1992 |
Kellam AJ:
Coincidence
On 25 September 2015 the prosecution filed and served an amended notice of intention to adduce coincidence evidence. That notice sets out the particulars of the acts it seeks to prove by the evidence as follows:
Evidence of the events ... will be led to prove that the accused did particular acts on the basis that, having regard to similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally.
The particular acts are as follows:
1.It was the accused who Mr Webb saw walking into Mr Klarenbeek’s residence on 31 December 1988.
2.It was the accused who purchased the Ruger 10/22 rifle (the murder weapon) from Mr Klarenbeek on 1 January 1989.
The notice contains details of 11 events which the prosecution relies upon as demonstrating such similarity with each other so as to submit that it is improbable that the events occurred coincidentally. The 11th such event is said to be the alleged purchase of the accused from Mr Klarenbeek of the murder weapon on 1 January 1989.
Admissibility of coincidence evidence is governed by ss 55, 98 and 101 of the Evidence Act 2011 (ACT) (the Act). The evidence must first be relevant to a fact in issue. If it is relevant, then the coincidence rule applies.
98 The coincidence rule
(1)Evidence that 2 or more events happened is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally unless-
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party's intention to present the evidence; and
(b)the Court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
Note One of the events referred to in s (1) may be an event the happening of which is a fact in issue in the proceeding.
(2)Subsection (1) (a) does not apply if-
(a)the evidence is presented in accordance with a direction made by the Court under section 100 (Court may dispense with notice requirements); or
(b)the evidence is presented to explain or contradict coincidence evidence presented by another party.
Note Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1)This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2)Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3)This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4)This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
The New South Wales Court of Criminal Appeal in R v Gale; R v Duckworth [2012] NSWCA 174; 217 A Crim R 487 (R v Gale) gave detailed consideration to what is required of the prosecution in order to rely upon the coincidence rule set out in s 98. Simpson J, with whom McLellan CJ at CL and Fullerton J agreed, observed at [28] that before the evidence sought to be admitted can be admitted, the judge must first be satisfied that reasonable notice has been given and secondly, must form the opinion that the evidence will have significant probative value. In the case before me the fact that the Prosecution gave reasonable notice is not in issue. The issue before me is whether or not the evidence sought to be relied upon by the prosecution has significant probative value.
At [25] of R v Gale, Simpson J noted that, at its heart, s 98 is a provision concerning the drawing of inferences. She said:
The purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. The process of reasoning from which that inference would be drawn is:
· two or more events occurred; and
· there were similarities in those events; or there were similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and
· having regard to those similarities, it is improbable that the two events occurred coincidentally;
· therefore the person in question did a particular act or had a particular state of mind.
Her Honour stated further at [27]:
The task for the judge in determining the admissibility of evidence that would permit the jury to undertake that reasoning process, and draw the ultimate inference, is what is presently in issue. Provided the evidence is such that would permit the jury, acting reasonably, to reach that conclusion or draw that inference, the evidence could be held to have significant probative value. It is a question of the capacity of the evidence to have that effect.
At [30] her Honour set out the factual underpinnings of a decision to admit or reject coincidence evidence under s 98 as follows:
· that there is evidence capable of establishing the occurrence of two or more events; and
· that there is evidence capable of establishing similarities in the two or more events; or
· that there is evidence capable of establishing similarities in the circumstances in which two or more events occurred;
· that there is evidence capable of establishing both similarities in the two or more events and similarities in the circumstances in which the two events occurred.
Her Honour stated at [31] that in a case in which it is found that there is such evidence, then, in her opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows:
· the first step is to identify the "particular act of a person" or the "particular state of mind of a person" that the party tendering the evidence seeks to prove;
· the second step is to identify the "two or more events" from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the "particular act" or had the "particular state of mind";
· the third step is to identify the "similarities in the events" and/or the "similarities in the circumstances in which the events occurred" by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;
· the fourth step is to determine whether "reasonable notice" has been given of the intention to adduce the evidence (or, if reasonable notice is not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement);
· the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, "have significant probative value";
· in a criminal proceeding, if it is determined that the evidence would have "significant probative value", the sixth step is the determination whether the probative value of the evidence "substantially outweighs" any prejudicial effect it may have on the defendant (s 101 (2)).
Applying the analysis approved by the New South Wales Court of Criminal Appeal in R v Gale, the first step is to identify the 'particular act' that the prosecution seeks to prove. The particular act sought to be proved is that the accused attended the Klarenbeek house on 31 December 1988 and that he was the purchaser of the murder weapon, a .22 Ruger rifle, from Mr Klarenbeek on 1 January 1989.
The second step is to then identify the 'two or more events' from the occurrence of which the prosecution seeks to prove that the accused did the act of attending at the Klarenbeek house and purchasing the murder weapon referred to in the preceding paragraph. In this regard the notice sets out ten events which it is submitted bear similarity to the eleventh event, being the alleged purchase of the murder weapon as referred to above. In summary, those events are submitted by the prosecution to be as set out in the following paragraphs.
Event 1
On Saturday, 17 October 1987, Timothy Smith placed advertisements in the Canberra Times newspaper for the sale of numerous firearms and shooting books. On Sunday, 18 October 1987, at about 6 or 7 pm a person, who the prosecution asserts was the accused, attended Mr Smith's home in response to those advertisements. That person arrived alone. Mr Smith described the person who attended as a Caucasian male about 5 feet 11 inches tall, around 40 years of age and of a medium build. The person's hair was receding on top and was worn in a neat hairstyle. The person wore glasses with thick lenses and was clean-shaven.
He was wearing a waist length, military style, olive green parka with pockets. The parka was made of heavy cotton material. The person was described by Mr Smith as being well spoken. The person showed an interest in a revolving Carbine that Mr Smith was not willing to sell as it did not have the required paperwork. In the end the person purchased seven or eight shooting books after haggling with Mr Smith over the price for a sum between $90 and $120.
Event 2
On Saturday, 28 November 1987, Shaun Tierney placed an advertisement in the Canberra Times newspaper for the sale of a Mauser 98 model ex-military rifle. On the day of the advertisement at about two or three o'clock in the afternoon, a person, who the prosecution asserts was the accused, attended Mr Tierney's home to inspect the firearm. He arrived alone. The person described by Mr Tierney had a fair complexion, he was about 5'7" or 5'8" tall, between 30 to 35 years of age and 'a bit under a normal build'. He had light brown hair which was receding in the front and a bit longer at the back. He wore square glasses that were lightly tinted and he was clean-shaven. He was wearing a light coloured casual shirt with a collar and brown coloured jeans or casual trousers. The Mauser 98 model rifle came with a scope attached. The person offered Mr Tierney something more than $300 for the rifle and ammunition but did not want any of the rifle reloading gear. Mr Tierney told the person that the offer was not enough and that he did not wish to separate the gun from the reloading gear. The person told Mr Tierney that he would have to think about it and departed.
Event 3
On Saturday, 23 January 1988, George Hadjitofi placed an advertisement in the Canberra Times newspaper for the sale of numerous firearms. A few days after the advertisement, a person, who the prosecution asserts was the accused, attended Mr Hadjitofi's home to inspect the firearms. He attended alone and told Mr Hadjitofi that he lived close by and had walked to the house. Mr Hadjitofi described the person as about 165 to 170 cm tall with a flabby body and fat around the stomach. He said that the person's hair was light brown and short and a bit thin on top. He wore clear glasses for reading and was clean-shaven. He was wearing a yellow short-sleeved button up shirt with a collar and was wearing long dark trousers. He had an Australian accent. Mr Hadjitofi showed the person a Stirling double-barrelled 12 gauge shotgun. Mr Hadjitofi offered to sell the shotgun for $300. The person made an offer of $250 which Mr Hadjitofi refused. The person said he would call Mr Hadjitofi about the gun and left.
Event 4
On Wednesday 10 February 1988 Geoffrey Bradshaw placed an advertisement in the Canberra Times newspaper for the sale of a Stirling semi-automatic .22 rifle. On the day of the advertisement at about 1pm a person, who the prosecution asserts was the accused, attended Mr Bradshaw's home to inspect the firearm. The person arrived alone and Mr Bradshaw formed the impression that the person had walked to his house as there was no car in the driveway or outside the front of the property. Mr Bradshaw described the person as having a 'paleish' complexion, being about 5'7" tall and between 35 and 40 years of age. He stated that the person weighed about 9 ½ stone and was of a medium build with hair that was normal length and a 'mousy brown' colour. It was brushed to one side. The person was not wearing glasses and did not have a beard but there 'is a chance that he had a moustache. He was wearing a pair of trousers, a shirt and possibly a pullover. He spoke fairly quietly, without accent and sounded as if he was educated. The person asked Mr Bradshaw whether the rifle came with a telescopic scope. The person paid between $90 and $95 for the rifle, a scope, cleaning out tool and bullets.
Event 5
On Saturday, 13 February 1988, James Lenaghan placed an advertisement in the Canberra Times newspaper for the sale of a rifle and shot gun, as well as other related paraphernalia. On the day of the advertisement, at around 12 PM, a person, who the prosecution asserts was the accused, attended Mr Lenaghan's home in response to the advertisement. That person arrived alone. Mr Lenaghan's wife saw the person walking up the road to attend the house. The person attended Mr Lenaghan's home twice and left by foot on both occasions. No car was seen on either occasion.
Mr Lenaghan described the person as Australian 'or a porn', about 5'9" or 5'10" in height and around 40 years of age. He stated that he had a big build with a beer gut and short, sandy coloured hair. The person wore glasses. Mr Lenaghan could not remember whether the person had a beard but thought he may have had a moustache. He was reasonably well dressed and wearing a long sleeved shirt. He was described as having a deep voice and sounding as though he was educated.
The .22 Ruger rifle that the person was interested in came with a telescopic scope but the person sought to purchase it without the scope or other accessories. The person originally offered Mr Lenaghan $150 for the rifle which offer was refused. He then left Mr Lenaghan's home but returned an hour later to make another offer. Further haggling occurred and the rifle was finally purchased for around $200 without the telescopic scope or any other accessory.
Event 6
On Saturday 4 June 1988 Scott Thompson placed an advertisement in the Canberra Times newspaper for the sale of a Ruger .22 semi-automatic rifle. On the same day as the advertisement and during the afternoon a person, who the prosecution asserts was the accused, attended Mr Thompson's home to inspect the firearm. That person arrived alone. Mr Thompson did not know how the person arrived at his house as he did not see a motor vehicle out the front but as the person left the premises Mr Thompson's housemate, Christina MacDonald, saw the person walk down the street and around the corner.
Mr Thompson described the person as having a fair complexion, being about 5'1O" to 5'11" tall and around 40 to 45 years of age. The person was of a big build and was not muscular but was overweight. The person wore glasses and was clean shaven and well-dressed, although Mr Thompson could not recall what he was wearing. Mr Thompson described the person as being well spoken with a soft voice and no appreciable accent. The Ruger rifle being sold by Mr Thompson did not have a scope. The person did not purchase the rifle.
Event 7
On Saturday, 29 October 1988 Scott Thompson again placed an advertisement in the Canberra Times newspaper for the sale of a Ruger .22 semi-automatic rifle. On the evening of Saturday, 19 November 1988, a person, who the prosecution contends was the accused, attended Mr Thompson's home to inspect the firearm. That person arrived alone. Mr Thompson's housemate, Robert Ingle, showed the person the rifle. Mr Ingle did not observe a vehicle outside the house and noticed that the person was not carrying any keys. Mr Ingle described the person as being about 6 feet tall, in his late 30s or early 40s and of a solid build. He said that the person had fair hair that was greying and worn in the 'short back and sides' style. The person wore glasses, was clean-shaven and was neat and tidy in appearance. He was wearing a green zip front press studded all-weather jacket that came to below the waist. He was wearing neatly pressed blue slacks and spoke in an educated Australian voice.
The Ruger rifle being sold by Mr Thompson did not have a telescopic scope. The person told Mr Ingle that he thought Mr Thompson's asking price of $250 was 'a bit much' and Mr Ingle told him that he thought Mr Thompson would come down to $200 but the person left saying that he would think about.
Event 8
On Saturday,' 19 November 1988, Andrew Ross placed an advertisement in the Canberra Times newspaper for the sale of a Ruger 10/22 rifle. At about 5 pm on a day after the publication of the advertisement a person, who the prosecution contends was the accused, met Mr Ross at a car park near the Cotter Tavern to inspect the firearm. The person arrived alone in a light-coloured four cylinder Japanese type family car. Mr Ross described the person as having a normal complexion, being about 5'9" tall and around 40 to 45 years of age. He was slightly overweight but not muscular. His hair was light brown and short and straight. He wore glasses and was clean-shaven. Mr Ross described him as being without a noticeable accent and well spoken.
The person told Mr Ross that he was not interested in the scope and only wanted the rifle. The person offered $190 for the rifle without the scope but Mr Ross refused to sell it without the scope. There was further haggling about the price and Mr Ross made a final offer to sell the rifle for $240 but the person refused to pay that.
Event 9
On Saturday, 26 November 1988, Rodney Kaalverink placed an advertisement in the Daily Telegraph newspaper for the sale of a Ruger 10/22 rifle. On the day of the advertisement at about 10am a person, who the prosecution asserts was the accused, attended at his home to inspect the firearm. That person attended alone and no car was observed by Mr Kaalverink who described the person as having a fair complexion, being about 5'8" tall and approximately 40 years of age and of medium build. He had short sandy coloured hair with a receding hairline at the front, wore gold rimmed glasses and was clean-shaven and was well dressed. He spoke without noticeable accent and was well spoken.
The rifle which Mr Kaalverink had for sale had a Tasco scope fitted to it. The person did not want to buy the rifle with the scope attached and tried to 'knock down' the price on that basis Mr Kaalverink refused to lower the price. The person did not buy the rifle.
Event 10
Event 10 and Event 11 include the matters which the prosecution seeks to prove by the assertion of coincidence between these events and the preceding nine events. That is, that it was the accused who attended the Klarenbeek house and that it was he who bought the .22 Ruger rifle from Mr Klarenbeek. On Saturday, 31 December 1988, Louis Klarenbeek placed an advertisement in the Canberra imes newspaper for the sale of numerous firearms. It is the prosecution case that the accused attended Mr Klarenbeek's home to inspect the firearms on the day of the advertisement at about 8:30am. Raymond Webb, another visitor to Mr Klarenbeek's house that morning, described the person that the prosecution asserts was the accused as being about 5'8" tall, between 40 and 50 years of age and on the 'tubby' side. The person had sandy coloured hair that was thinning, was not wearing glasses, was clean-shaven and was wearing light coloured clothes including a jacket that was a bone or 'tawny' colour. In this regard the prosecution 'notes that the description Mr Klarenbeek gave of the person who attended his house is different from that of Mr Webb's.' It is the prosecution case that Mr Klarenbeek's description was false. The prosecution case is that the accused showed an interest in a 10/22 Ruger rifle that came with a telescopic scope and that the accused did not want the scope as he said that he already had one.
Event 11
Following the advertisement placed by Mr Klarenbeek in the Canberra Times on Saturday, 31 December 1988 and the attendance of the person said to be the accused, referred to as Event 10, the prosecution case is that on Sunday, 1 January 1989 at about 2pm a person, who the prosecution asserts was the accused, attended Mr Klarenbeek's home to purchase a 10/22 Ruger rifle. That person arrived alone and told Mr Klarenbeek that he had walked to the house. In the description provided to police by Mr Klarenbeek, he described the person as being about 40 to 50 years old, 165 cm tall and of a small build with a full head of red hair with grey through it, with thick eyebrows, ruddy cheeks and as being clean shaven. Mr Klarenbeek said the person was well dressed and was wearing a brown and yellow striped jacket. The prosecution case is that this description was a false description. However the evidence of Mr Klarenbeek is that the person sought to purchase the 10/22 Ruger rifle without a scope and that after negotiation the rifle was sold to that person without the scope for approximately $275.
Identifying similarities in events and circumstances
The third step is to identify the 'similarities in the events and/or the 'similarities in the circumstances in which the events occurred'. By reason of those similarities the prosecution asserts the improbability of the coincidental occurrence of the events. The prosecution relies upon the following similarities in both the events and the circumstances in which they occurred:
(a)an advertisement appearing in the Canberra Times on a Saturday (found in events 1, 2, 3, 5, 6, 7, 8, and 10). (It should be observed that the prosecution also seeks to rely upon this matter in relation to event 11 which of course is the same advertisement as that referred to in event 10.)
(b)the person that the prosecution contends is the accused, attended on the day of the advertisement (found in events 2, 4, 5, 6, 9 and 10)
(c)the person attended alone (found in events 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11).
(d)the person arrived on foot and without a car (found in events 3, 4, 5, 6, 7, 10 and 11).
(e)physical appearance (found in events 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10).
(f)desire to purchase a firearm without a scope (found in events 5, 6, 7, 8, 9, 1O and 11).
(g)arguing over price (found in events 1, 2, 3, 5, 7, 8, 9 and 11).
Assessing whether evidence has significant probative value
Having identified the "similarities in the events" and "the similarities in the circumstances in which the events occurred" by reason of which the prosecution asserts the improbability of coincidental occurrence of the events, it is necessary to turn to an evaluation of whether or not the evidence will, either by itself or in conjunction with other evidence, "have significant probative value".
The term "probative value" is defined in the Dictionary of the Act as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". Although the adjective "significant" is not defined in the Act, the same requirement in s 97 (1) (b) of the Act relating to tendency evidence was considered in IMM v The Queen [2016] HCA 14; 257 CLR 300 by French CJ, Kiefel, Bell and Keane JJ at [46] in the following terms:
The use of the term "probative value" and the word "extent" in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.
What is described in Uniform Evidence Law, Odgers, 12th Ed. at p 697 as "the proper approach" to be taken to the assessment of whether the evidence has significant probative value in the context of s.98 (1)(b) of the Act was considered by the New South Wales Court of Criminal Appeal in DSJ v The Queen; NS v The Queen [2012] NSWCCA 9; 259 FLR 262, where Whealy JA provided the leading judgment and with whom Bathurst CJ, Allsop P, McLellan CJ at CL and McCallum J generally agreed. Whealy JA said at [55-56]:
In my opinion, it is plain that s 98, in its terms, poses this simple question: whether the evidence being considered is capable, to a significant degree, of rationally affecting the assessment (ultimately by a jury) of the probability of the existence of a fact in issue. Again, in its terms, it requires the trial judge to assess whether the evidence has capacity to that extent and for that purpose. In R v Shamouil Spigelman CJ, in examining s 137 of the Evidence Act, pointed out that, by reason of the terminology of the Dictionary definition of "probative value", the focus is on the capacity of the evidence to have the effect mentioned. As the Chief Justice said, "It does not direct attention to what a tribunal of fact is likely to conclude".
Assessment of the probative value of the evidence, whether for the purposes of ss 97, 98, 101 or 137 Evidence Act , does not, generally speaking, depend on any assessment of its credibility or reliability: Shamouil At 237 [60]. Nor does it depend upon any prediction of the likelihood that a jury will in fact accept it. The trial Judge considering probative value has to make his own estimate or assessment of probative value predicated upon the assumption that the jury will accept the evidence. See also Lodhi v R [2007] NSWCCA 360 at [174]- [177]; R v Mundine [2008] NSWCCA 55 at [33] where this Court said:
"probative value" is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted, would play in the resolution of a (disputed) fact - or the contribution it might, if accepted, make to that resolution to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete.
However, the Court of Criminal Appeal held that in assessing whether or not coincidence evidence has "significant probative value", consideration can be given to alternative explanations for the evidence other than the inference sought to be drawn by the party adducing the evidence, so long as the alternative explanation arises on the evidence. The extent to which a trial judge should consider possible alternative explanations in determining whether the proposed coincidence evidence has significant probative value was considered by Whealy JA at [78) where he said:
In this appeal the Crown has conceded that, in performing the task under s 98, a trial Judge may, in an appropriate case, have regard to an alternative explanation arising on the evidence. The Crown, however, insisted that, in so doing, the trial Judge is restricted to examining whether the Crown hypothesis has cogency, that is, whether the Crown evidence is capable of being regarded as significant in its ability to prove the Crown case. If the coincidence evidence, either by itself or having regard to other evidence in the Crown case, positively and forcefully suggested an explanation consistent with innocence, then the coincidence evidence could scarcely be regarded as important or of consequence in proving the fact or facts in issue. What is required is this: the trial Judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the Judge's view, rob the evidence of its otherwise cogent capacity to prove the Crown's case? If it does not, the trial judge may safely conclude that the evidence has significant probative value.
In this regard, Bathurst CJ said at [8-10]:
Third, it follows from the use of the word could in the definition of significant probative value that what th Court is required to assess is the possibility of the evidence affecting the assessment of the probability of the existence of a fact in issue. It is not required to assess whether the evidence would have this effect, that is, engage in a fact-finding exercise involving an assessment of the reliability and credibility of the evidence: cf R v Shamoui/ [2006) NSWCCA 112; (2006) 66 NSWLR 226 at [59]- [67).
Fourth, the matters to which the Court is to have regard in performing this task is the evidence sought to be adduced either on its own or having regard to other evidence adduced or to be adduced by the party seeking to tender it. In particular, regard is not to be had to evidence either adduced or to be adduced by the other party to the proceedings. This also demonstrates, in my opinion, that it is no part of the Court's task to engage in a fact-finding exercise to determine the reliability or credibility of the evidence, or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value.
However, as Whealy JA has pointed out (at [78)-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. However, this does not involve either undertaking the fact-finding analysis suggested by senior counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) of the Act and would involve the judge usurping the fact-finding role of the jury.
The defence relies upon the observations of both Bathurst CJ and Whealy AJ referred to in the preceding paragraphs to the effect that a trial judge in forming a view as to whether the evidence has significant probative value must consider, by reference to the evidence, whether or not there is a "real possibility" of an alternate explanation inconsistent with the guilt of the accused. It is submitted that the alternate explanation, being that the person referred to in each of the events relied upon is not the accused, is, taking into account the discrepancies and the dissimilarities between those incidents and to use the words of junior counsel for the accused, Ms Line, "wide open".
The defence submits further that the evidence upon which the prosecution seeks to rely is simply not of significant probative value. First it submits that there are significant differences between the events that the prosecution seeks to characterise as similar. In this regard the defence compiled a table based upon the descriptions outlined in the coincidence notice (the 'table'). The table was attached as an Appendix to written submissions filed on behalf of the defence.
The table demonstrates dissimilarities between the events in question. The description of the height of the visitor to the homes of gun sellers varies from 5'5" or 165 cm (events 3 and 10 and 11 per Mr Klarenbeek), to 5'9" and tall (event 8), to 6' (event 7). In addition the description of the build of the visitor varies from normal build (event 2), medium build (events 1, 4 and 9) to big build and beer gut (event 5) and big build and overweight (event 6). Furthermore description of the visitor's hair varies from sandy hair (events 5, 9 and 10), to fair hair (events 6 and 7), to light brown (events 2, 3 and 8), to greying (events 7 and 10 and 11 per Mr Klarenbeek). The visitor's voice is described variously as quiet/soft (events 4 and 6), deep (event 5) and possibly 'porn' (event 5). The visitor was described as clean shaven (events 1, 2, 3, 6, 7, 8, 9, 10 and 11 ) or possibly had a moustache (events 4 and 5) the visitor is described as not wearing glasses (events 4 and 10) and at other times is said to have worn glasses (events 1, 2, 3, 5, 6, 7, 8 and 9). The age of the visitor was described as being as young as 30 to 35 (event 2), 35 to 40 (event 4), 40 to 45 (events 6 and 8) and 40 to 50 (Mr Webb and event 10). It is submitted that in 4 of the 11 events the visitor did not attend on the day of the advertisement and in 4 of the 11 events there is no information about the visitors desires regarding the scope.'
On the basis of the above dissimilarities the defence argues that the evidence establishes only that in response to advertisements in the local newspaper in 1987 and 1988 in Canberra, some fair skinned, casually to well-dressed Australian men arrived alone at the sellers' residences to inspect the goods advertised and in doing so haggled over the price. It is contended that such events have little probative value and, if anything, demonstrate that there was a market in Canberra at the relevant time among white Australian men for second-hand firearms. This makes the accused's alleged behaviour in seeking to purchase such a firearm unremarkable. It is submitted that the material in question is not of significant probative value and cannot be relied upon by the prosecution to contend that it is improbable that the events occurred coincidentally.
Furthermore it is submitted that of the 11 incidents, only two, those relating to Mr Bradshaw (event 4) and Mr Lenaghan (event 5), are allegations of the actual purchase of a rifle. It is argued on behalf of the accused that it cannot be inferred, even if it was the accused person who visited all the other premises and did not buy a rifle, that that makes it more likely that he bought the rifle from Mr Klarenbeek on 1 January 1989.
The prosecution submission however is that the evidence upon which it relies has significant probative value because it highlights the improbability of someone other than the accused purchasing the murder weapon from Mr Klarenbeek.
In response to the reliance by the defence upon the dissimilarities in the evidence sought to be adduced by the prosecution, the prosecution argues that nevertheless there are significant similarities and that it is unrealistic to expect identical descriptions from various witnesses. In this regard the prosecution relies upon R v Ceissman [2010] NSWCCA 50 where Latham J, with whom McLellan CJ at CL and Schmidt J agreed, explained at [16] that the test was one of 'capability, that is, is it open to the jury to conclude from the "related events" that the offences were committed by the same offenders'. The prosecution relies upon R v Miles [2013] ACTSC 48 where Nield AJ stated at [19]:
Section 98(1) of the Evidence Act speaks of "similarities in the events or circumstances"; it does not speak of "strikingly" or "substantially" similar events or circumstances, although whether the events and/or circumstances are "striking" or "substantial" in similarity is relevant to the question whether the evidence of those events and/or circumstances, either alone or with other evidence, has significant probative value.
The prosecution concedes that there are differences between the descriptions given by various witnesses of the person who attended their houses seeking to purchase a firearm. However in spite of some of those differences it is submitted that the accounts 'fairly consistently describe' the accused in the following ways. First, it is argued that there is only a small variation in the descriptions of the weight of the person. Descriptions ranged from medium build, to "tubby", "solid build", "big build", a "flabby body and fat around the stomach" or "slightly overweight". It is submitted that those descriptions are syntactically similar and the only exception to this is Mr Klarenbeek, whom the Crown submits deliberately lied in his description.
In addition, in terms of the height of the person, Mr Smith and Mr Thompson described the person as being about 5'11", and that Mr Tierney, Mr Kaalverink and Mr Bradshaw described the person at similar heights of about 5'7" or 5'8". Mr Hadjitofi described the person as about 165 to 170 cm (approximately 5'7"). Mr Ross and Mr Lenaghan described the person as being about 5'9" or 5'10". Mr Ingle described the person as being about 6'0" tall.
The prosecution submits that Mr Smith, Mr Tierney, Mr Hadjitofi, Mr Lenaghan, Mr Ingle, Mr Ross and Mr Kaalverink mentioned that the person haggled over price. It is argued that this is a 'fairly consistent behavioural profile'. Furthermore the prosecution relies upon the fact that Mr Smith, Mr Tierney, Mr Hadjitofi, Mr Lenaghan, Mr Thompson, Mr Ross and Mr Kaalverink all state that the person was wearing glasses. In addition the prosecution relies on the fact that the person was always alone as being probative.
Finally, the description of the person's hair by Mr Smith as receding, by Mr Tierney as light brown and receding, by Mr Hadjitofi that it was light brown and a bit thin on top, by Mr Bradshaw that it was mousey brown and by Mr Thompson that the hair was thinning, is relied upon by the prosecution. Furthermore, the fact that Mr Ingle stated that the person he dealt with had fair hair that was neat, that Mr Ross stated the person's hair was light brown and short and straight, that Mr Kaalverink stated that he had a receding hairline, and Mr Webb's statement that the person's hair was thinning, are all submitted to be consistent descriptions and therefore probative. It is argued that as the evidence is to be taken at its highest in order to determine whether it has the ability to be of consequence in resolving a fact in issue, the similarities in the descriptions of the person's visual appearance, his height and his behaviour in seeking a firearm, attending alone either arriving on foot or without a car in sight, and haggling are circumstances which overshadow the differences.
Assessment of 'coincidence' evidence
In my view a number of the asserted similarities relied on by the prosecution are not compelling in terms of lack of coincidence. I would attach no great importance to the fact that the person had an Australian accent or to the fact that the person attended alone. I expect that the majority of persons who answered such advertisements spoke with an Australian accent, although perhaps not with a well spoken one as seems to be generally the evidence here. As for attending alone, shopping for a firearm is different than shopping for a lounge suite or a new refrigerator, so it does not seem to me to be a matter of great significance that the person attended alone. Likewise the fact that the person generally attended on the day of the advertisement does· not seem to me to be compelling, nor the fact that there was regularly haggling over price. In terms of the descriptions given by various persons there certainly are some similarities, although as the defence points out the descriptions are inconsistent in some ways.
That said however, there are some aspects of the evidence upon which the prosecution seeks to rely which in my view are of significant probative value. In particular, I consider that the fact that the person expressed the desire to purchase a firearm without a scope, as is the circumstance in events 5, 8, 9 and 10 stands out as a feature of the evidence which, combined with other evidence, and in particular the compelling evidence that it was the accused who purchased the Bradshaw rifle, and returned it but kept the scope, is in my view of significant probative value. In addition, the fact that the person had an interest in purchasing a particular type of rifle, a Ruger .22, as is the circumstance in events 5, 6, 7, 8, 9, and 1O is a feature of the evidence which combined with other evidence, is of significant probative value.
As summarised above, event 4 relates to the sale of a Stirling semi-automatic .22 rifle by one Geoffrey Bradshaw. On Wednesday, 10 February 1988, Mr Bradshaw placed an advertisement in the Canberra Times newspaper for the sale of the rifle. On the day of the advertisement the person the prosecution contends is the accused, attended alone at Mr Bradshaw's home to inspect the firearm. Mr Bradshaw formed the impression that the person had walked to his house as there was no car in the driveway or outside in front of the property. Mr Bradshaw's description of the person is set out at paragraph [14] above. After some discussion the rifle, which was equipped with a telescopic sight, was purchased by the person in question. He rang back later that day and told Mr Bradshaw that the rifle was jamming and arrangements were made for him to return the rifle, which he did. It was agreed that Mr Bradshaw would take the rifle back although it was also agreed that the man would keep the telescopic sight that had been sold with it. After Mr Bradshaw took the rifle back, he did not subsequently sell or use it. It remained in his cupboard until in July 1990 police collected it in the course of their investigations into Mr Winchester's murder. Subsequently Mr Bradshaw observed the accused in Petrie Plaza and recognised him as looking very similar in his facial appearance to the man who had bought his rifle some two and a half years before. ·
However, there is additional evidence that connects the accused to the purchase of the rifle from Mr Bradshaw. When he sold the rifle Mr Bradshaw· asked the buyer to fill out his details on the back of the gun licence held by Mr Bradshaw. The buyer wrote the name J. F. Thompson and the address of 124 Atherton Street, Downer on the licence. There is evidence that neither of the people who lived at that address at that time was the purchaser of the rifle and neither of them have ever called themselves Thompson, nor heard of any person by the name of J.F. Thompson. There is evidence from a handwriting expert to the effect that the accused is the person who wrote on the back of the licence. Furthermore, Mr Bradshaw's rifle was examined by the Police Fingerprint Section in July 1990 which found that there was a fingerprint and a thumbprint on the stock. The fingerprint was found to be that of Mr Bradshaw and the thumbprint was found to be that of the accused.
Event 5 relates to the advertisement for the sale of a rifle by one James Lenaghan. On Saturday, 13 February 1988, after the attendance of the accused upon Mr Bradshaw, Mr Lenaghan advertised in the Canberra Times newspaper for the sale of a rifle and shot gun and other equipment. On the day of the advertisement, Mr Lenaghan received a phone call from a man who enquired about the rifle. Mr Lenaghan informed that person that it was a Ruger .22 semi-automatic rifle. At around 12 pm that day a person attended Mr Lenaghan's home in response to the advertisement. Mr Lenaghan's description of that person is set out at [16] above. The .22 Ruger rifle that Mr Lenaghan had for sale came equipped with a telescopic scope. The person asked to purchase it without the scope. In the course of the discussion the person expressed concern about whether the rifle might jam. Some haggling took place over the price and the person left but then returned an hour later to make another offer and after further haggling the rifle was sold for approximately $200 without the scope.
Event 6 relates to an advertisement placed in the Canberra Times on Saturday, 4 June 1988 for the sale of a Ruger .22 rifle by Mr Scott Thompson. Mr Thompson's description of the person who attended that day in response to the advertisement is set out at [19] above.
Event 7 relates to a further advertisement for a Ruger .22 rifle placed in the Canberra Times by Mr Thompson on Saturday, 29 October 1988. At [20] above is a summary of the description given by Mr Thompson's then house-mate, one Robert Ingle, of the person who attended at Mr Thompson's home on the afternoon of 29 October 1988. Mr Thompson was not present and Robert Ingle negotiated with the person on behalf of Mr Thompson.
Event 8 relates to an advertisement placed in the Canberra Times newspaper for the sale of a Ruger 10/22 rifle on Saturday, 19 November 1988 by one Andrew Ross. It is relevant at this point to observe that the prosecution will call expert evidence to the effect that an entry in a diary of the accused for 20 November 1988 states "Ruger, $250" and includes a telephone number "365150". That number was the number given in the advertisement in the Canberra Times placed by Mr Ross on 19 November 1988. The evidence upon which the prosecution relies is that some time after the advertisement was published at about 5 pm, the accused met Mr Ross at a car park near the Cotter Tavern to inspect the advertised firearm. Mr Ross's description of the person is set out at [22] above. The person told Mr Ross that he was not interested in the scope and only wanted the rifle. He made an offer of $190 for the rifle without the scope. Mr Ross refused to sell it without the scope.
Event 9 relates to an advertisement placed by Rodney Kaalverink in the Daily Telegraph newspaper on Saturday, 26 November 1988 for the sale of a Ruger 10/22 rifle. On the day of the advertisement at about 10 am a person who the prosecution contends is the accused attended at Mr Kaalverink's home to inspect the firearm. He arrived alone. Mr Kaalverink's description of the person is set out at [24] above. Mr Kaalverink's Ruger rifle had a telescopic scope attached to it at the time. The person did not want to buy the rifle with the scope attached. He endeavoured to negotiate about the price as he did not wish to purchase the rifle with the scope. Mr Kaalverink refused to do so and no sale took place.
Event 10 relates to the advertisement Mr Klarenbeek placed in the Canberra Times on Saturday, 31 December 1988. Raymond Webb attended at the premises of Mr Klarenbeek early in the morning of 31 December 1988. Mr Webb described another visitor to the premises that morning as being about 5'8" tall, between 40 and 50 years of age and on the "tubby" side. He had sandy coloured hair that was thinning, was not wearing glasses and was clean shaven.
Mr Klarenbeek described the person as a well-spoken Australian. The evidence is that that person showed an interest in a 10/22 Ruger rifle that Mr Klarenbeek had for sale. That rifle came with a scope. The person said that he did not want the scope. He said that he already had one.
Event 11 relates to the sale by Mr Klarenbeek of the Ruger 10/22 rifle on Sunday, 1 January 1989. I have already set out the description given by Mr Klarenbeek of that person at [26] above: The evidence of Mr Klarenbeek is that that person sought to purchase the 10/22 Ruger rifle without a scope and that eventually it was sold without the scope for around $275. ·
Conclusion
In my view the similarities in the description of the accused, together with the fact that there is credible evidence that it was the accused who purchased the Bradshaw rifle and kept the scope, and the evidence relating to the person seeking, after that, to purchase a Ruger .22 rifle without a scope, are significantly probative matters in relation to events 4, 5, 6, 7, 9, 10 and 11.
In addition the fact that the person had an interest in purchasing a particular type a rifle, a Ruger .22, as is the circumstance in events 4, 5, 6, 7, 8, 9 and 10 and is a feature of the evidence which, combined with other evidence, of significant probative value. The inference sought to be relied upon by the prosecution is that it was the accused that Mr Webb saw walking into Mr Klarenbeek's residence on 31 December 1988, and that it was the accused who purchased the Ruger .22 rifle, which was the murder weapon, from Mr Klarenbeek on 1 January 1989. In my view, the evidence is such that the jury, acting reasonably, could draw that inference.
Finally I consider that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. In this regard, I observe that no submission to the contrary was advanced by the defence in relation to this issue.
Accordingly, I rule that prima facie the prosecution is permitted to lead the evidence referred to as events 4, 5, 6, 7, 8, 9, 10 and 11 as set out in the Amended Notice of Intention to Adduce Coincidence Evidence filed on behalf of the prosecution on 25 September 2015, on the basis that the evidence in question is capable to a significant degree of rationally affecting the assessment by the jury of the probability of the existence of a fact in issue, namely whether or not it was the accused who purchased the .22 Ruger rifle from Mr Klarenbeek. I have ruled that evidence of the above evidence is prima facie admissible as coincidence evidence, because there are other issues which have been argued (and as I understand it to be argued in the future), as to whether the evidence in question is inadmissible or not for other reasons.
Until further order the reasons for this ruling are not to be published other than to the parties and their legal representatives.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kellam AJ. Associate: Date: 27 November 2017 |
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