R v Eastman (No 27)
[2018] ACTSC 1
•17 January 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 27) |
Citation: | [2018] ACTSC 1 |
Hearing Dates | 19 July 2017; further submissions filed by the Crown on 16 and 26 October 2017 and by the accused on 20 October 2017 |
DecisionDate: | 17 January 2018 |
Before: | Kellam AJ |
Decision: | See [97] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude Evidence – Admissibility of previous representation where person not available to give evidence – relevant evidence – whether evidence admissible for a non-hearsay purpose – whether the exception to the hearsay rule applies – whether the evidence excluded as credibility evidence – whether use of the evidence should be limited – operation of ss 60, 65, 102, 106, 108, 108A and 136 of the Evidence Act 2011 (ACT) |
Legislation Cited: | Evidence Act 1995 (Cth) ss 59, 60, 65, 67(4) and 136 Evidence Act 1995 (NSW) s 103 Firearms and Dangerous Weapons Act 1973 (NSW) |
Cases Cited: | Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507 KTR v The Queen [2010] NSWCCA 271 Subramaniam v Public Prosecutor [1956] 1 WLR 965 |
Texts Cited: | Stephen 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 (Accused) | |
File Number: | SCC 111 of 1992 |
KELLAM AJ:
On 17 March 2017 the prosecution filed an amended notice (the ‘notice’) pursuant to s 67(1) of the Evidence Act 2011 (ACT) (‘the Act’) of its intention to present evidence of previous representations made by Lodewyk “Louis” Klarenbeek, who gave evidence in the course of the Coronial Inquest in this matter but who died on 26 February 1990 before the first trial took place.
Representations by Lodewyk “Louis” Klarenbeek relied on by the prosecution
The notice states that the prosecution seeks to rely upon s 65(2)(b) and/or 65(2)(c) and s 65(3) of the Act in arguing that the hearsay rule does not apply to the evidence in question. There are a number of representations the prosecution seeks to rely upon. They are as follows:
(a)Representations (numbered category 1 in the table annexed to the notice) made in an advertisement dated 31 December 1988. These relate to an asserted fact that as at 31 December 1988, Mr Klarenbeek had rifles for sale. The defence does not object to the introduction into evidence of these representations.
(b)Representations (numbered category 2 in the table annexed to the notice) made in a conversation between Mr Klarenbeek and Richard Hall on 31 December 1988 relating to the sale of a 10/22 Ruger rifle. The defence does not object to the introduction into evidence of these representations.
(c)Representations (numbered category 3 in the table annexed to the notice) made by Mr Klarenbeek in a conversation with Raymond Webb on 5 January 1989 relating to the sale of a Ruger 10/22 rifle without a telescopic sight (the ‘Webb representations’). The defence opposes the admission into evidence of these representations. The prosecution seeks to introduce these representations into evidence pursuant to s 65(2)(b) and/or s 65(2)(c) through the oral evidence of Mr Webb.
(d)Representations (numbered category 4 in the table annexed to the notice) made in relation to a photo board of 12 different men in a conversation with Detective Sergeant Pattenden on 28 January 1989. The defence takes no objection to the introduction into evidence of these representations.
(e)Representations (numbered category 5 in the table annexed to the notice) made in a conversation with Detective Sergeant Cavanough and Detective Sergeant Pattenden on 3 February 1989 relating to Mr Klarenbeek having fired a Ruger 10/22 in bushland. The defence does not oppose the introduction into evidence of these representations.
(f)Representations (numbered category 6 in the table annexed to the notice) made in a conversation with Detective Sergeant Cavanough on 6 February 1989 whereby Mr Klarenbeek advised that he had found seven cartridge cases in bushland where he had fired a Ruger 10/22 rifle. The defence does not oppose the introduction of these representations into evidence.
(g)Representations (numbered category 7 in the table annexed to the notice) made in a conversation with Detective Sergeant Cavanough on 15 June 1989 whereby Mr Klarenbeek identified the general area where he had found cartridge shells. The defence does not oppose the introduction of these representations into evidence.
(h)Representations (numbered category 10 in the table annexed to the notice) made in a conversation with his son, Peter Klarenbeek, relating to the sale of a Ruger 10/22 rifle without a telescopic sight (the ‘Peter Klarenbeek representations’). The defence opposes the introduction into evidence of these representations.
(i)Representations (numbered category 11 in the table annexed to the notice) made in a recorded conversation with Detective Constable Cotterill on 9 August 1989 whereby Mr Klarenbeek provided details of the inspection of the .22 Ruger rifle that he had for sale and the subsequent sale of it. The defence does not oppose the introduction of these representations into evidence. However it should be observed that the prosecution does not rely on the description given of the man who purchased the rifle from Mr Klarenbeek, or the asserted fact that the man showed Mr Klarenbeek a NSW shooter’s licence.
(j)Representations (numbered category 12 in the table annexed to the notice) made in the course of giving evidence at the Coronial Inquest on 31 August 1989 which the prosecution submits are admissible pursuant to s 65(3) of the Act. The defence does not oppose the introduction of these representations into evidence. However, as with representations numbered category 11, the prosecution does not rely on the asserted fact that Mr Klarenbeek could not identify anyone in the photobook shown to him (the non-identification representation), nor upon the description of the purchaser of the rifle given by Mr Klarenbeek, nor on the asserted fact that the man who purchased the rifle showed a NSW shooter’s licence.
(k)Representations (numbered category 13 in the table annexed to the notice) made in a conversation with Detective Constable Cotterill on 25 September 1989 when Mr Klarenbeek looked at videos of the accused. The introduction into evidence of these representations is not opposed by the defence. It should be observed however that the prosecution argues that it is not leading these representations to prove the existence of the facts asserted and thus the representations are not excluded by s 59 of the Act.
(l)Representations (numbered category 14 in the table annexed to the notice) made in a conversation on 27 September 1989 with Detective Constable Cotterill who showed Mr Klarenbeek a photo board which included images of Mr McCorry and Mr Webb (the ‘Webb/McCorry representations’). The defence opposes the introduction of these representations into evidence. As with the representations in category 13, the prosecution argues that these representations are relevant as they give context to other representations and furthermore that these representations are not being led to prove the truth of the facts asserted and so are not excluded by s 59 of the Act.
Accordingly, there are three distinct items of evidence sought to be introduced into evidence by the prosecution and which are the subject of opposition by the defence. In summary these are first, the Webb representations (representation numbered category 3), secondly, the Peter Klarenbeek representations (representation numbered category 10), and finally, the Webb/McCorry representations (representation numbered category 14).
Prosecution submissions in support of admissibility of Klarenbeek representations
Before turning to the detail of each of those representations, it is necessary to examine briefly the context in which the prosecution contends that the evidence is admissible.
The prosecution case is that Mr Klarenbeek sold the murder weapon on 1 January 1989. Mr Webb gave evidence at the trial that he saw the accused at Mr Klarenbeek’s house on 31 December 1989 and that he was told by Mr Klarenbeek that he had sold a Ruger 22/10 to a person who did not need a scope. (The representations numbered category 3 in the amended notice and referred to in [2(c)] above.) The representations upon which the prosecution seeks to rely are contained in a number of statements made by Mr Webb and it is proposed by the prosecution that the evidence will be led through the oral evidence of Mr Webb. The evidence is that the representations sought to be relied upon were made by Mr Klarenbeek to Mr Webb on 31 December 1988 and 5 January 1989. The prosecution argues that the evidence is admissible pursuant to s 65(2)(b) and/or 65(2)(c) of the Act. It is submitted that the circumstances under which the representations were made make it unlikely that any of them was a fabrication, that they were spontaneous, that there was no reason for Mr Klarenbeek to lie to Mr Webb and that little time had passed between the making of the representations and the asserted facts, so that it is unlikely that Mr Klarenbeek’s memory of the asserted facts would be inaccurate.
The representations made to Peter Klarenbeek by his father, upon which the prosecution seeks to rely, are that he was told by his father that the person who bought the gun came in on Saturday, looked at the rifle, came back on Sunday and “wheeled and dealed” about buying the rifle without the scope to go with it, and that he had parked down the road rather than in front of the house. (The representations numbered category 10 in the amended notice and referred to in [2(h)] above.) The representations upon which the prosecution seeks to rely are contained in a record of conversation between Detective Sergeant John Lawler and Peter Klarenbeek dated 26 February 1991 and the evidence of Peter Klarenbeek given at the trial on 21 June 1995. The prosecution argues that the evidence is admissible pursuant to s 65(2)(c) of the Act. It is submitted that although it is unclear when the representations were made to Peter Klarenbeek by his father, it is apparent that they must have been made between the date of sale of the firearm on 1 January 1989 and the date of Mr Louis Klarenbeek’s death on 26 February 1990. It is argued that the circumstances are such that it is highly probable that the representations are reliable, those circumstances being that the representations were made by a father to his son close to the death of the father, that there was no reason for Mr Klarenbeek senior to lie to his son and furthermore, that the representations are consistent with other representations made by him.
Subsequently, after police made it public that they were looking for a Ruger rifle, Mr Webb advised police that he saw a Ruger .22 at the Klarenbeek house on 31 December 1988. Over a period of time police requested Mr Klarenbeek to identify various people. He was shown a photo board containing a photo of the accused and video of the accused. Mr Klarenbeek did not identify the accused. However, he was also shown photo boards containing photographs of Mr Webb and Mr McCorry, both of whom bought firearms from him at about the same time as the sale of the Ruger .22 and both of whom Mr Klarenbeek failed to identify as having done so. (The representations numbered category 14 in the amended notice and referred to in [2(l)] above.) In essence, what the prosecution seeks to do is to put the evidence of the non-identification by Mr Klarenbeek of Mr Webb and/or Mr McCorry before the jury so that the jury can decide whether or not the non–identification of the accused by Mr Klarenbeek was deliberate.
I will deal first with the Webb/McCorry representations briefly referred to in [2(l)] above. The Webb/McCorry representations relate to a statement dated 27 September 1989 setting out details of an interview between Detective Constable Geoffrey Cotterill and Mr Klarenbeek on 27 September 1989 whereby Mr Klarenbeek was shown a photoboard which included images of Raymond Webb and Robert McCorry both of whom had purchased firearms from Mr Klarenbeek. Mr Klarenbeek said that he did not recognise any of the men depicted and that he had never sold a firearm to any of the men. The prosecution submits that the representations made by Mr Klarenbeek to Detective Constable Cotterill are not to be led to prove the truth of the facts asserted and thus are not excluded by s 59 of the Act.
Previous Court dealings with Klarenbeek evidence
It is necessary first to look at the somewhat convoluted history relating to the past dealings with the evidence of Mr Klarenbeek.
The Evidence Act 1995 (Cth) came into effect shortly before the commencement of the first trial. That Act applied in the ACT at the time. I am informed by Senior Counsel for the prosecution that under the transitional provisions which applied in the ACT at the time of the first trial, the evidence Mr Klarenbeek gave at the inquest was not admissible, as although the accused was represented, he was not present at the time the evidence was given. The background to what occurred is set out in the decision of the Full Court upon the appeal of his conviction by the accused. In Eastman v The Queen (1997) 158 ALR 107 at 167 the Full Court summarised what took place as follows:
The question whether [the accused] was the purchaser of the Klarenbeek Ruger 10/22 was an important issue in the trial…
By the time of the trial, Mr Klarenbeek had died. He had testified at the inquest but his evidence was not admissible in the trial (except by consent) as relevant provisions of applicable ACT legislation were not satisfied. On 5 and 6 June 1995, Mr Terracini in the cross-examination of Mr Pattenden adduced evidence that Mr Pattenden had spoken to Mr Klarenbeek soon after the murder in relation to the Ruger 10/22. Mr Pattenden had shown him a folder of photographs (now exhibit 73). Over objection from the Crown, Mr Terracini was permitted to cross-examine to obtain evidence that one of the photographs was of the [accused], and further that Mr Klarenbeek said he did not recognise anyone in the photographs (the Klarenbeek representation).
The Crown objected to this line of cross-examination arguing that the Klarenbeek representation was hearsay, and for that reason inadmissible to prove the truth of what Mr Klarenbeek had said. In argument in the absence of the jury, the trial judge said that he considered the evidence was admissible as relevant to the investigations conducted by the police but not as evidence of the truth of the statement. Mr Terracini said that the [accused] sought “to rely on his (Mr Klarenbeek’s) observations”, that is for the hearsay purpose of proving the truth of the statement. However he also said in the course of submissions “well in the alternative, we certainly would not be cavilling with a Subramaniam sort of situation where it goes in not necessarily as to its truth but, in my submission, in the context of this case it is admissible”.
That latter submission was a reference to the Privy Council decision of Subramaniam v Public Prosecutor [1956] 1 WLR 965 which determined that a statement which is hearsay may be admitted into evidence, not as evidence of the truth of the statement but as evidence of the fact that it was made. The trial judge permitted Mr Terracini to cross-examine Mr Pattenden as to the fact that Mr Klarenbeek had not recognised anyone on the photoboard and as to the fact that the photoboard contained a photograph of the accused, but reserved the question of what direction should be given to the jury about it until the evidence was complete. In due course, the trial judge ruled that the evidence was admissible, as showing the course of the investigation, but could not be used as evidence that Mr Klarenbeek did not, in fact, recognise the accused.
Relevant sections of the Evidence Act 1995 (Cth)
It is convenient at this point to consider briefly the relevant sections of the Evidence Act 1995 (Cth) as at the time of the first trial.
59The hearsay rule – exclusion of hearsay evidence
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
(2)Such a fact is in this Part referred to as an asserted fact.
For all relevant purposes ss 59(1) and 59(2) of the Evidence Act 1995 (Cth) as they were at the time of the trial are almost identical to ss 59(1) and 59(2) of the current Act. Section 59 is in terms that reflect the common law rule that hearsay evidence is not admissible to prove the truth of the fact stated.
Section 60 of the Act is similar to s 60 of the Evidence Act 1995 (Cth) as it was at the time of the first trial, providing that the hearsay rule “does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact”.
60Exception: evidence relevant for a non-hearsay purpose
The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.
Section 60 reverses the common law rule that evidence of a statement made to a witness by a person who is not a witness, if admitted to prove the fact that the statement was made, could not be used for a hearsay purpose. Under s 60 the statement is evidence of the truth of the matter asserted, unless a direction is made under s 136 to limit the use of the evidence. See Eastman v The Queen (1997) 158 ALR 107 at 167 and R v Welsh (1996) 90 A Crim R 364 per Hunt CJ at CL at 368.
For all relevant purposes, ss 65(1), (2), (8) and (9) of the Evidence Act 1995 (Cth) as it was at the first trial are almost identical to ss 65(1), (2), (8) and (9) of the current Act.
65Exception: criminal proceedings if maker not available
(1)This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:
(a) made under a duty to make that representation or to make representations of that kind; or
(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) made in circumstances that make it highly probable that the representation is reliable; or
(d) against the interests of the person who made it at the time it was made.
(3)…
(4)…
(5)…
(6)…
(7)…
(8)The hearsay rule does not apply to:
(a) oral evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer to in order to understand the representation.
(9)If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that:
(a) is adduced by another party; and
(b) is given by a person who saw, heard or otherwise perceived the other representation being made.
Section 136 of the Evidence Act 1995 (Cth) as it applied at the time of the first trial is identical to the current wording of s 136 of the Act.
136General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
The Full Court observed that, when the issue about the admissibility of the Klarenbeek representations arose in the course of the trial, no attention was given by either counsel, or the judge, to the provisions of the then recently enacted Evidence Act 1995 (Cth). The original ruling was made by reference to common law principles rather than in the context of that Act.
As set out above, s 60 of the Evidence Act 1995 (Cth) provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
20. The Full Court stated at 170 as follows:
Section 60 reverses the common law rule that evidence of a statement made to a witness by a person who is not called as a witness, if admitted under the Subramaniam principle to prove the fact that the statement was made, could not be used for a hearsay purpose. Under s 60 the statement is now evidence of the truth of the matter asserted, unless a direction is made under s 136 to limit the use of the evidence.
Thus, at the first trial, the admission of the evidence on the basis that the evidence was relevant to the course of the police investigation meant that, pursuant to s 60, the hearsay rule did not apply to the evidence. The Full Court determined that, with the benefit of hindsight, the Klarenbeek representation was not properly admitted pursuant to s 60 as it was not relevant for a purpose other than proof of the fact intended to be asserted by the representation. The Court said at 171:
As the Klarenbeek representation was in fact admitted for a reason which attracted the operation of s 60, theoretically it could be used for a hearsay purpose unless its use was limited by a direction under s 136…
For reasons which appear later in this section of the judgment, this was a case where a direction under s 136 to limit the use of the evidence to the non-hearsay purpose for which it was originally admitted would properly have been made on 27 October 1995 had that section been referred to in conjunction with s 60.
The submission made by the prosecution before me is that the Full Court in Eastman v The Queen has effectively resolved the issue. As the Full Court said at 171:
As the Klarenbeek representation was in fact admitted for a reason which attracted the operation of s 60, theoretically it could be used for a hearsay purpose unless its use was limited by a direction under s 136. That use was not dependent upon prior notice of intention pursuant to s 67(1), and an application under s 67(4) would not have been necessary.
The Court said further at 173:
Had an application been made by the appellant during the course of the evidence to rely on s 60, or if the Klarenbeek representation had been admitted under s 65, s 65(9) would have permitted the Crown to adduce into evidence the other previous representations made by Mr Klarenbeek.
Material was before the Full Court to the effect that the prosecution had, before the first trial, offered to consent to the tender of Mr Klarenbeek’s evidence given at the Coronial Inquest but, in doing so, had foreshadowed that if the evidence were to be tendered on behalf of the accused then the prosecution would seek to adduce evidence as to why the jury ought not to accept Mr Klarenbeek’s evidence of non-identification. No doubt this was a reference to the Webb/McCorry representations.
As the Full Court observed, that offer was not accepted by the accused. In the course of oral submissions before me, Senior Counsel for the prosecution informed me that the prosecution maintains its consent to the tender of the evidence given by Mr Klarenbeek at the Inquest, including the record of interview with Mr Pattenden, but has also foreshadowed that if the evidence were to be tendered by the accused, the prosecution would seek to adduce evidence as to why the jury should not accept Mr Klarenbeek’s evidence of non-identification (see Transcript of 17 July 2017 at 540).
The Full Court gave consideration to s 65(9) of the Evidence Act 1995 (Cth) and concluded that in the first trial, had an application been made by the accused during the course of evidence to rely upon s 60 of the Evidence Act 1995 (Cth) in introducing the representations of Mr Klarenbeek and the Court had granted that application, or if the Klarenbeek representations had been admitted under s 65, then s 65(9) would have permitted the prosecution to adduce into evidence the other previous representations made by Mr Klarenbeek.
The Full Court (at 172 - 173) observed that the prosecution case was that the effect of previous representations made by Mr Klarenbeek supported the prosecution case in four respects:
(a)Mr Klarenbeek in one record of interview said that he sold the Ruger 10/22 with a silencer but without the telescopic sight. The Crown submitted that this was a significant piece of evidence because Mr Webb, in an earlier statement to the police, said that Mr Klarenbeek had told him that he sold the gun without a silencer.
(b)Mr Klarenbeek said that the sights on the Ruger 10/22 were inaccurate. The Crown contends that this would have explained why the appellant tried to sell the rifle to Mr Reid a few days later.
(c)Mr Klarenbeek said that the rifle was sold on Sunday, 1 January 1989 to a man who had attended on the Saturday to inspect it, and who had haggled about the price. This evidence would have been relevant to the Crown case as:
i.it was unlikely that a professional assassin seeking a weapon would haggle over the price, and then return it to the vendor the following day;
ii.the Crown led evidence that the appellant withdrew $200 from an ATM on 1 January 1989.
(d)Evidence would be led to show that Mr Klarenbeek's identification was unreliable as Constable Cotterill had on another occasion shown him photographs which included ones of Mr McCorry and Mr Webb, both of whom had been at Mr Klarenbeek's place for lengthy periods of time in relation to the purchase of guns immediately following the advertisement placed by Mr Klarenbeek on 31 December 1988, and Mr Klarenbeek said that he could not identify either of them as persons who had purchased guns from him.
The Full Court said later at 173:
... Although the import of s 60 was not considered, the trial judge at the time did not admit the Klarenbeek representation for use as evidence of the truth of the fact asserted. An express ruling limiting the use to be made of the evidence was within the power of the Court under s 136. In reality, the trial proceeded as if such an order had been made to reflect the basis on which the evidence was admitted. The evidence having been admitted for a limited purpose, it remained for the [accused] to make application to have the Klarenbeek representation admitted as evidence of its truth. One course would have been to give notice under s 67 of an intention to adduce the evidence under s 65(8). This was never done, although at least by 6 June 1995 it must have been apparent that this was the procedure required by the Evidence Act.
As it was, by the time the appellant applied for a direction under s 67(4) it was far too late in the trial process to permit the Crown to call retaliatory evidence. As that course was not open, the Crown would have suffered unfair prejudice if a direction were made that had the effect of allowing the Klarenbeek representation to be used as evidence of the truth of the fact asserted. That would also have been the case if the appellant had sought to call in aid s 60 at that late stage.
In consideration of the circumstances before it, the Full Court at 174 considered the possibilities as to why counsel for the accused did not make an application to use the representations for a hearsay purpose at an early stage in the proceedings and then said:
But whatever the explanation, had the application been made at an appropriate time, before the close of evidence, in our opinion one of two things would have happened. Either by an express exercise of the discretion under s 136 the use of the evidence of the Klarenbeek representation would have been limited to a non-hearsay purpose, or the Klarenbeek representation would have been admitted for a hearsay purpose and the Crown would have been permitted to adduce the evidence of the other representations made by Mr Klarenbeek. The former situation is, effectively, what resulted from the ruling made on 27 October 1995. The latter situation would have placed before the jury evidence of the other previous representations by Mr Klarenbeek. The information before this court about those representations suggests that the additional evidence would have been more likely to assist the Crown case than the defence.
Prosecution’s submissions
The prosecution submits before me that, as stated by the Full Court, it will suffer unfair prejudice if the Klarenbeek non-identification of the accused is permitted to go into evidence as truth of the fact asserted by the representation, but the prosecution evidence in respect of the failure of Mr Klarenbeek to also identify Mr McCorry and Mr Webb is disallowed.
The prosecution submits that the evidence of all representations upon which it relies in the amended notice should be admitted pursuant to s 60 of the Act. It makes no secret of the fact that it will then seek to adduce all of the evidence in relation to Mr Klarenbeek’s non-identification and what the prosecution alleges is his ‘misdescription’ of the accused. If the evidence is not admitted under s 60 then the approach the prosecution proposes is to not adduce the evidence of the non-identification of the accused from the photoboards and the videos, and to not adduce the evidence of the cross-examination of Mr Klarenbeek at the Coronial Inquest, and to not adduce evidence of the misdescription. It is submitted that the accused would be able to use s 65(8) of the Act to adduce that evidence as evidence of the truth, to which the prosecution will take no exception, but the prosecution will then be in a position to use s 65 (9) of the Act in order to ensure that all the material it considers relevant is before the jury.
The prosecution concedes that if this were a case where it was simply a matter of the witness not identifying the accused, then of course that evidence would be adduced. However, it submits that the circumstances of the non-identification in this case are different. In this regard the prosecution relies upon the evidence of Mr McCorry who attended upon Mr Klarenbeek at his home on a total of five occasions in January, February and, it is said, July 1989. Nonetheless on 27 September 1989 Mr Klarenbeek did not identify him when shown a photoboard which included a photograph of Mr McCorry. Likewise Mr Klarenbeek failed to identify Mr Webb to whom he had also sold a rifle and whom he had met on a number of occasions.
Although Mrs Klarenbeek has died and her evidence, which is second-hand hearsay, will not now be adduced, the prosecution relies upon what she told police as part of the reasoning behind its approach on this issue. She told an officer who was interpreting for her that her husband had told her that he had seen the buyer’s photograph on the photoboard and further that her husband was scared of being shot by the person who had purchased the Ruger. At the second Coronial Inquest Mrs Klarenbeek stated that:
The man had the New South Wales licence which my husband was not wrong to sell that gun when nobody know that is the man who killed Mr Winchester. We not know nothing.
The prosecution’s position is that there is no evidence that the Klarenbeeks recorded a New South Wales licence number or any other details of the man to whom the Ruger was sold. Furthermore, the prosecution relies upon the fact that the New South Wales police, who found Mr Klarenbeek to be uncooperative, executed a search warrant on him and charged him with a firearms offence. Thus the prosecution contends that there is every reason why Mr Klarenbeek saw fit not to recognise the accused and, for that matter, Mr McCorry and Mr Webb.
Accordingly, and in summary, the prosecution case is that Mr Klarenbeek, who it argues, on the evidence, was a small scale firearms dealer, sold weapons to Mr Webb, Mr McCorry, and to the accused. The prosecution relies upon the evidence that the accused did not require a scope as he already had one, that he withdrew $200 on the day of the sale of the Ruger by Mr Klarenbeek, and that there is evidence that the accused was only looking for a Ruger .22 in the weeks and months before the sale by Mr Klarenbeek. The primary position of the prosecution is that it seeks to adduce in evidence ‘all of the representations contained in categories 11, 12 and 13 as well as the representations in category 14’. This it argues is consistent with the determination of the matter by the Full Court. It argues that the jury should not be presented with ‘half the picture’. It contends that to do so would be misleading to the jury and unfair to the Crown and, the prosecution submits, that ‘unless the evidence in relation to the non-identification of Mr Webb and Mr McCorry (category 14) is admitted’, the prosecution will not adduce the evidence in relation to the non-identification of the accused. The precise orders sought by the prosecution are that:
(a)the previous representations in category 14 are admissible under s 60 of the Act;
(b)the previous representations in category 11, other than those in the schedule marked with an asterix (i.e. those relating to the description of the man who bought the rifle and the assertion that he showed a NSW shooter’s licence), are admitted pursuant to s 65(2)(c);
(c)the previous representations in category 12, other those in the schedule marked with an asterix (i.e. those relating to the failure of Mr Klarenbeek to identify anyone on the photoboard, the description of the man who purchased the rifle and his production of a NSW shooter’s licence) are admitted pursuant to s 65(3) of the Act;
(d)the previous representations in categories 11 and 12 marked with an asterix in the schedule, and the previous representations in category 13, are admitted with the consent of the prosecution on the condition that the previous representations in category 14 are admitted (pursuant to s 60 of the Act); and
(e)if the previous representations in category 14 are admitted pursuant to s 60 of the Act, they are limited under s 136 of the Act as context evidence and not as the truth of the fact asserted.
Accused’s submissions
In response, the defence argues that the course proposed by the prosecution is inappropriate, in that it is an attempt to “strong arm” the defence to file a s 65(8) notice so that the prosecution can retaliate by relying on s 65(9) of the Act, which has a lower threshold. In his oral submissions junior counsel for the defence, Mr Stanton, argued that for many of the Klarenbeek representations the prosecution relies upon s 65(2)(c) of the Act and asserts that the representations about the asserted facts were made in circumstances that make it highly probable that the representations are reliable. Clearly this is so. By way of example the representation referred to as category 11, being a record of a conversation between Detective Constable Cotterill and Mr Klarenbeek having been conducted on 9 August 1989, is sought to be admitted into evidence by the prosecution pursuant to s 65(2)(c) of the Act on the basis that the circumstances make it highly probable that the representations are reliable. Those representations include the statement by Mr Klarenbeek that he bought a 10/22 Ruger rifle on 12 October 1988 from Kings gun shop in Fyshwick, ACT for about $250. He tried out the rifle and found that the sights were not straight and so offered it for sale with a scope and a sound reducer. Mr Klarenbeek told Detective Constable Cotterill that he fired five or six rounds through the rifle at a quarry on Captains Flat Road and that the man who bought the rifle came on a Saturday, looked at the gun and he wanted to buy it without a scope as he said he already had a scope and some other guns.
Mr Stanton submits that there is evidence which demonstrates that Mr Klarenbeek was cooperative with police and provided significant information to them in a cooperative manner. In this regard the defence relies upon the fact that when New South Wales police attended at Mr Klarenbeek’s premises on 18 January 1989, Mr Klarenbeek told them that he had sold a .22 rifle to Bob McCorry and he provided police with Mr McCorry’s address and phone number. He informed police that he had five other firearms on the premises, although he would not let them sight the firearms. Mr Stanton submits that this evidence contradicts the prosecution contention that Mr Klarenbeek did not identify his customers.
Furthermore, when police attended at his premises on 28 January 1989, acting on information received from Mr Webb about a .22 Ruger rifle, Mr Klarenbeek told police that he had sold a rifle about five weeks earlier to a male in his late 40s, with red hair, greying, and a tanned complexion. Mr Klarenbeek said that the man had a New South Wales gun licence, but he could not recall his name, and the man did not purchase the scope with the rifle. Mr Klarenbeek told police that he originally purchased the Ruger rifle from Kings Firearms in Fyshwick in mid-1988. He was shown a photoboard which included a photograph of the accused, but he did not identify anyone on the photoboard.
Additionally, when police executed a search warrant at his home on 3 February 1989, Mr Klarenbeek confirmed the description he had given to police on 28 January 1989 of the buyer of the Ruger. In addition, he told Detective Pattenden that he had fired the Ruger rifle at a quarry in the vicinity of Captains Flat and he would go there and attempt to locate spent cartridges. Subsequently on 6 February 1989 Mr Klarenbeek attended City Police Station and handed in seven spent .22 calibre cartridge shells and told police that he had obtained them from the area where he had test fired the Ruger. It is submitted that this is clear evidence of his cooperation with police.
On 22 May 1989 Mr Klarenbeek was charged by NSW police with possession of a prohibited article, being a silencer, without a permit contrary to the Firearms and Dangerous Weapons Act 1973 (NSW). It would appear that Mr Klarenbeek was dealt with concerning this matter on 28 August 1989 by way of dismissal and conditional discharge after a guilty plea. Apart from this matter the prosecution concedes that Mr Klarenbeek has no criminal history. Mr Stanton submits that the charge in question was a relatively minor matter and insufficient to justify the animus which the prosecution argues Mr Klarenbeek had towards police. He points out that notwithstanding that Mr Klarenbeek was charged by NSW Police on 22 May 1989 Mr Klarenbeek continued to assist the AFP.
Furthermore on 15 June 1989 Mr Klarenbeek met with Detective Cavanough at Captains Flat and showed him two locations some distance apart where he had fired the Ruger rifle. On 9 August 1989 Mr Klarenbeek spoke to Detective Constable Cotterill and he described the man who bought the rifle from him in terms similar to the description he gave on 28 January 1989.
Finally, at the Coronial Inquest on 31 August 1989 Mr Klarenbeek gave evidence from his bed at Canberra Hospital where he was being treated for terminal cancer. When being cross-examined he gave a description of the man who bought the rifle from him in terms similar to the description he gave on 28 January 1989. He confirmed that none of the people in the photoboard which was shown to him, and which included a photograph of the accused, was the person to whom he had sold the gun.
Mr Stanton submits that Mr Klarenbeek has made many representations that the prosecution relies upon and which the prosecution submits satisfy the threshold of s 65(2)(c) of the Act, in that such representations were made in circumstances that made it highly probable that they were reliable, and in such circumstances there is no basis for the prosecution to assert that his description of the man who purchased the Ruger rifle from him is other than reliable and credible.
It is submitted that there is considerable unfairness to both Mr Klarenbeek and to the accused in permitting the prosecution to use the representation said to have been made at the time that Mr Klarenbeek was shown the photoboard containing the photographs of Mr Webb and Mr McCorry in the manner proposed by it. The evidence as to this is contained in a statement of Detective Constable Cotterill dated 27 September 1989. In this statement Mr Cotterill states that he attended upon Mr Klarenbeek at his home on 25 September 1989. He played to Mr Klarenbeek two video tapes both of which depicted the accused. The statement contains the following:
I then asked Mr KLARENBEEK a number of questions in relation to his knowledge of the man depicted on the video tapes. Mr KLARENBEEK told me that the only time he had seen the man before was on the television news. Mr KLARENBEEK also told me that the man depicted on the video tapes was not the man who had purchased a Ruger rifle, serial number 112-96920, from him in either late 1988 or early 1989.
Furthermore the statement contains the following:
On Wednesday 27 September 1989 I again attended Mr KLARENBEEK's house and had a further conversation with him. I then showed him six colour Polaroid photographs, each depicting a man in a similar pose. The photographs were numbered from GC/1 to GC/6 inclusive. I asked Mr KLARENBEEK if he recognised any of the men depicted in the photographs and he replied that he did not. I then asked Mr KLARENBEEK if he had ever sold a firearm to any of the men depicted in the photographs and he replied that he had not.
The statement confirms that the photoboard shown by Mr Cotterill to Mr Klarenbeek contained photographs of both Mr Webb and Mr McCorry.
The issue of the failure of Mr Klarenbeek to identify the accused from the video shown to him was addressed in written submissions filed by the defence on 27 November 2017. The prosecution filed written submissions in response on 1 December 2017 to which the defence filed a response on 5 December 2017. The evidence is that two videos of the accused were shown to Mr Klarenbeek by police on 25 September 1989 and Mr Klarenbeek failed to identify the accused from those videos. It would appear however that there are no notes of what Mr Klarenbeek actually said. Two videos have been produced to me. The first is an amalgamation of Exhibits 193E and 193C from the Inquest and marked ‘LIMS047’ of which it is agreed that Mr Klarenbeek viewed the second and third parts. That video is in black and white format. The other video is in colour and has sound and is marked ‘LIMS046’. It is not known which video is source material and which is derivative. I suspect however that LIMS046 is the source material, it being in colour and having some sound.
It appears from a DPP conference note dated 16 March 1994 that the videos were shown to Mr Klarenbeek on his home video player. Mr Cotterill, who showed the video tapes to Mr Klarenbeek, stated that he obtained the videos from the ABC and other news footage (although the prosecution contends it was more likely surveillance footage) as they gave a better view of the accused than the photographs.
The defence submits that the ‘positive exclusion’ of the accused by Mr Klarenbeek is a relevant consideration and raises the issue of whether the prosecution should be permitted to rely upon the non-identification by Mr Klarenbeek of Mr Webb and Mr McCorry from single polaroid photographs. In my view the fact that Mr Klarenbeek failed to identify the accused in the video adds nothing to the determination of the issue before me. If he deliberately chose not to identify the accused from the photoboard it is unlikely that he would do so upon a viewing of the videos. If on the other hand he was genuinely confident that the photoboard did not contain a photo of the person to whom he had sold the rifle, then the fact that he did not identify the person to whom he had sold the rifle as appearing on the video adds nothing.
Mr Stanton submits that the fact that there are no notes of what was actually said by Mr Klarenbeek at the time that he saw the videos and the photoboard is of relevance, as is the fact that Mr Klarenbeek was terminally ill at the time. Furthermore Mr Stanton relies upon the fact that there is a significant temporal gap between the time of the purchase of the rifles by Mr Webb on 5 January 1989 and by Mr McCorry on 15 February 1989 and the interviews with Mr Cotterill on 25 and 27 September 1989. In addition Mr Stanton relies on the fact that Mr Klarenbeek now cannot be cross-examined about the issue of how his health might have affected his recall, nor can his wife be cross-examined about that matter. In such circumstances it is submitted that it is unfair to permit the prosecution to try to attack the credibility of Mr Klarenbeek in such a manner.
On the basis of the material referred to above Mr Stanton submits that the evidence is that Mr Klarenbeek was consistent in his description of the person who bought the rifle. The defence further submits that the suggestion that Mr Klarenbeek bore animus against police because of the charge laid against him by New South Wales police or for other reasons has no evidentiary foundation.
By reason of the above submissions, the primary order sought by the defence is that the previous representations in category 14 should be ruled as inadmissible. It is further submitted that I should make an advance ruling pursuant to s 192A of the Act to the effect that ‘the Defence issuing a hearsay notice relying upon s 65(8) of the Evidence Act in relation to Mr Klarenbeek’s representations about the appearance of the man who purchased the Ruger rifle, and his non-identification and exclusion of Mr Eastman as that man, does not result in the category 14 representations being admissible pursuant to s 65(9) of the Evidence Act’.
Submissions in relation to s 65(9) of the Act
It will be recalled that the position outlined by the prosecution is that, if the category 14 representations are not to be admitted under s 60 of the Act, then the prosecution will not adduce the evidence of the non-identification by Mr Klarenbeek of the accused. The prosecution argues that in those circumstances, the accused would be able to use s 65(8) of the Act in order to adduce that evidence as evidence of the truth. As stated above, if that occurred the prosecution has indicated that it will not object to that evidence, as it will be able to rely upon s 65(9) of the Act to tender the Webb/McCorry representations.
It is convenient to here set out the terms of ss 65(8) and 65(9) of the Act:
65Exception – criminal proceedings if maker not available
(8)The hearsay rule does not apply to –
(a) evidence of a previous representation presented by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer to in order to understand the representation.
(9)If evidence of a previous representation about a matter has bene presented by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that –
(a)is presented by another party; and
(b)is given by a person who saw, heard or otherwise perceived the other representation being made.
[emphasis added]
In response to the position advanced by the prosecution in relation to ss 65(8) and 65(9) of the Act, Mr Stanton contends that the words ‘the matter’ where they appear in s 65(9) are clear. It is argued that if in this case the defence is required to rely on s 65(8) to adduce evidence of Mr Klarenbeek’s description of the man to whom he said he sold the rifle, the fact that the man held a NSW shooter’s licence, and Mr Klarenbeek’s non-identification of the accused from the photoboard, together with his exclusion of the accused from the videos, that in such circumstances Mr Klarenbeek’s representations about Webb and McCorry do not meet the nexus of being about ‘the matter’. It is submitted that s 65(9) of the Act should be interpreted consistently with the rights of the accused in a criminal matter and that the prosecution should not be entitled to attempt to circumvent the onerous requirements under s 65(2) of the Act by using s 65(9) to lead evidence which is of ‘oblique relevance’.
In response to this argument the submission of the prosecution is that for the purpose of s 65(9) the evidence goes to a broader issue of whether or not Mr Klarenbeek was prepared to identify any of his customers. Mr Thangaraj submits that the issue of whether the words ‘the matter’ are to be given a broad or narrow interpretation was addressed by the Law Reform Commission and that the question to be addressed is whether or not the responsive evidence is relevant to the issue raised under s 65(8). The prosecution submits that the evidence of the Webb/McCorry non-identification evidence is relevant because it is about what Mr Klarenbeek said about the purchaser of the Ruger. In any event the prosecution submits that the Full Court ‘has already been through all of this and has analysed it’ and that what the defence is seeking to do is to persuade me to make ‘a different ruling from the analysis of the Full Court’. I accept this latter submission. It is clear that the Full Court gave careful consideration to the so-called ‘retaliatory’ provision in the circumstances of this case and determined that s 65(9) is applicable in the circumstances described.
Is the evidence that Mr Klarenbeek failed to identify either Mr Webb or Mr McCorry ‘credibility evidence’?
However, there arises a further issue which it is submitted by the defence was not the subject of any consideration by the Full Court at the time of the appeal. Mr Stanton argues that the decision of the Full Court in Eastman v The Queen (1997) 158 ALR 107 does not reveal any consideration of the operation and effect of the credibility rule. Furthermore he submits that it is apparent that the Full Court was not aware of the factual circumstances of Mr Klarenbeek’s previous representations and his dealings with police that are now before the court and are relevant to the admissibility of the category 14 representations. Mr Stanton relies upon the manner in which the prosecution deals with this issue in the Amended Case Statement dated 21 August 2015. At page 26 and under the heading ‘The accused purchases the Klarenbeek Ruger’ it is stated as follows:
When the accused purchased the murder weapon off Mr Klarenbeek, he did not have a gun licence. It is the Crown case that Mr Klarenbeek did not identify Mr Eastman as he did not want to get him into trouble for buying a firearm without a licence and did not want to get himself into trouble for selling a firearm to someone without a licence. Similarly, when Mr Klarenbeek sold a rifle to Mr Webb, Mr Klarenbeek did not require him to produce any type of licence. When Mr McCorry first went to buy a rifle from Mr Klarenbeek, Mr Klarenbeek did not mention the need for a gun licence (though when Mr McCorry went back to Mr Klarenbeek’s after Mr Klarenbeek had been spoken to by police Mr Klarenbeek indicated that Mr McCorry would need a licence). On 27 September 1989 police attended Mr Klarenbeek’s residence and had a further conversation with him about the identity of other purchasers of firearms at about the time of the sale of the Ruger rifle. He was shown polaroids of Mr Webb and Mr McCorry but claimed not to have recognised or sold a firearm to anyone in the photographs. It’s the Crown case that this was untruthful and again Mr Klarenbeek said he did not recognise Mr Webb or Mr McCorry because he did not want to get them or himself into trouble.
Accordingly, it is submitted on behalf of the accused that the evidence sought to be relied upon by the prosecution in relation to the Webb/McCorry representations is “unequivocally credibility evidence” which is prima facie inadmissible under s 102 of the Act. In my view this submission has considerable weight. The introduction into evidence of the failure by Mr Klarenbeek to identify either Webb or McCorry has only one purpose, which is to impugn the description given by Mr Klarenbeek to the effect that the person to whom he sold the .22 Ruger was not the accused. It is clear that the reason the prosecution seeks to introduce the evidence is to demonstrate that Mr Klarenbeek’s non-identification of the accused was made knowingly.
Although s 102 of the Act provides that credibility evidence about a witness is not admissible, there are a number of specific exceptions to that rule set out in ss 103, 104, 106, 108, and 110. In addition s 108A deals with the admission of credibility evidence about a person who has made a previous representation but is not a witness. Section 108A provides as follows:
108AAdmissibility of evidence of credibility of person who has made a previous representation
(1)If –
(a) evidence of a previous representation has been admitted in a proceeding; and
(b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding;
credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person’s credibility.
(2)Without limiting the matters to which the court may have regard for subsection (1), it must have regard to –
(a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under and obligation to tell the truth; and
(b) the period that elapsed between the doing of the acts or the happening of the events to which the representation related and the making of the representation.
Credibility evidence is defined in s 101A of the Act:
101ACredibility evidence
Credibility evidence, in relation to a witness or someone else, is evidence relevant to the credibility of the witness or person that –
(a) is relevant only because it affects the assessment of the credibility of the witness or person; or
(b) is relevant –
(i) because it affects the assessment of the credibility of the witness or person; and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of parts 3.2 or 3.6.
Note 1Section 60 and 77 will not affect the application of par (b), because they cannot apply to evidence that is yet to be admitted.
Note 2Section 101A was inserted as a response to the decision of the High Court in Adam v The Queen (2001) 207 CLR 96.
Credibility is defined in the Dictionary to the Act:
credibility –
(a) of a person who has made a representation that has been admitted in evidence – means the credibility of the representation, and includes the person’s ability to observe or remember facts and events about which the person made the representation; and
(b) of a witness – means the credibility of any part or all of the evidence of the witness, and includes the witness’ ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.
As is clear from the definition of credibility appearing in the Dictionary to the Act, credibility of a person who has made a representation means the credibility of the representation. Thus the words ‘credibility evidence about the person who made the representation’ appearing in s 108A means evidence that affects the assessment of the credibility of the representation under consideration.
Mr Stanton relies upon the consideration of the relevant test by Simpson J in R v El-Azzi [2004] NSWCCA 455 at [183], where her Honour said in relation to s 103(1) of the Evidence Act 1995 (NSW), which is in very similar terms to s 103(1) of the Act:
In my opinion, for this evidence to have had substantial probative value within the meaning of s 103(1), it must have had the potential to have a real bearing upon the assessment of the appellant’s credibility – and, particularly, to the appellant’s credibility in relation to the evidence he had given, or would give, at the trial. It cannot have had substantial probative value for the purposes of s 103(1) unless it was capable, in a significant way, of bearing upon that assessment.
Section 103 of the Act provides that the credibility rule does not apply to evidence given by a witness in cross-examination if the evidence could substantially affect the assessment of the witness’ credibility. Whilst it is true that s 103 applies to an available living witness and s 108A applies to evidence from a person who will not be called to give evidence, the test of admissibility in s 103 of the Act is the same as in s 108A, in that credibility evidence is not admissible unless it could substantially affect the assessment of the credibility of the person who made the representation. Likewise, the matters that a court must have regard to in considering whether the evidence could substantially affect the credibility of the person in question are the same.
Mr Stanton submits, and I consider correctly so, that the test under s 108A is the same as that relevant to s 103(1) of the Act. He contends that the McCorry/Webb material falls well short of the threshold of substantial probative value for the purposes of s 108A. If he is correct in that argument then that material is simply not admissible.
However, as Mr Thangaraj points out, s 108A comes into play only once evidence of a previous representation has been admitted into a proceeding. Nevertheless, in the unusual circumstances now before me, it appears to be sensible that I give consideration to the matter at this point. The prosecution rejects the argument that the evidence of Mr Webb and Mr McCorry is merely evidence relating to the credibility of Mr Klarenbeek. It submits that their evidence gives context to the evidence of the non–identification by Mr Klarenbeek of the accused. It is submitted that if that evidence was omitted then the jury would look at the Klarenbeek evidence in a vacuum and thus, because the evidence has importance and relevance outside the issue of credit, s 108A is not applicable.
Whilst I agree that it is highly undesirable that the evidence of Mr Klarenbeek be considered ‘in a vacuum’, I am unconvinced by the argument that the evidence in issue is contextual evidence akin to ‘relationship evidence in a sexual assault case’ as submitted to me on behalf of the prosecution. Relationship evidence in certain circumstances is admissible to give context to the circumstances in which an offence has been committed. An example of the use of such evidence appears in KTR v The Queen [2010] NSWCCA 271, where the NSW Court of Criminal Appeal considered whether evidence of violence by the appellant towards various children in his family was relevant only to the credibility of his stepdaughters, who alleged that they had been subject to sexual abuse from him over a long period of time. This argument was rejected by McLellan CJ, with whom Fullerton J and Simpson J agreed, and who said at [99]:
…evidence of violence perpetrated by the appellant against the complainants was relevant because it provided a realistic context in which to understand the complainants’ evidence. Evidence that a complainant did not resist the appellant or report the assaults to her mother because she believed it to be pointless to resist or was scared or terrified of the appellant’s possible response demands an understanding of the context of the prior relationship between the complainant and the appellant.[1]
The term ‘context evidence’ was explained by Howie J in Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463 at [119] as follows:
Context evidence is relevant to the credibility of the complainant only in that his or her version of the particular incident which is the basis of the charge in the indictment may be more capable of belief when seen in the context of what the complainant says was his or her sexual relationship with the accused. It may explain, on the complainant’s version, why the accused and the complainant acted as they did in circumstances where without the context of the relationship those acts might be inexplicable.
Such evidence is admissible because it is relevant and pertinent to issues which the jury has to decide. In R v Frawley (1993) 69 A Crim R 208, Gleeson CJ said at 222-223:
In my view the preferable approach in a case such as the present is not to consider the matter in terms of generality as to “relationship” but, rather to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue.
In the end, it appears to me that the assertion by the prosecution that the evidence in question is not credibility evidence but is ‘context’ evidence is somewhat circular. The evidence will be relevant if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The issue is certainly not without difficulty. As McHugh J said in Nicholls v The Queen [2005] HCA 1; 219 CLR 196 in the somewhat different context of the consideration of the common law collateral evidence rule:
… [I]t is often difficult to maintain the distinction between credit and issue. It is also often difficult to maintain the distinction between evidence that affects only the credit of a witness and evidence that is relevant to a fact in issue. The credibility of a witness is inevitably indirectly relevant to establishing facts in issue. Sometimes, the credibility of a witness is decisive of the facts in issue. It is a matter of degree, both in relation to relevance and to whether a fact is collateral. Whether a fact bears on the credit of a witness depends not only upon what the witness represents to the court, but also upon the nature of the party’s case.
Furthermore, I consider there is weight in the argument advanced by Mr Stanton that the argument that the evidence is contextual evidence and thus admissible, cannot be correct in principle, because it would allow the prosecution to circumvent the criteria for admissibility under ss 108 and 108A of the Act by merely asserting that on the prosecution case, a witness made false representations which are relevant to an earlier representation as ‘context’ rather than credibility evidence. As Mr Stanton submits, that:
would lead to an extraordinary situation where there are onerous requirements for adducing hearsay evidence of an unavailable witness for the truth of its contents pursuant to s 65(2) of the Evidence Act, but no limitations where the Crown asserts that the particular representation is not being led for the truth of its contents, but rather to demonstrate the representation was false which is also relevant to assessing the credibility and/or reliability of the person's other representations.
In the alternative it is submitted by the prosecution that even if the McCorry/Webb evidence is credibility evidence and s 108A were seen as applicable, then the evidence sought to be admitted would pass the test set by that section. That is, that the evidence could substantially affect the assessment of the credibility of Mr Klarenbeek’s evidence in relation to the non-identification of the accused by him. In addition it is contended that pursuant to ss 108A(2)(a) and (b) the evidence does tend to prove that the representation made by Mr Klarenbeek was, knowingly or recklessly, false, and at the time he made the representation he was under an obligation to tell the truth to police, and that the period between the sale of the Ruger and when he made the first representation was a matter of only weeks.
In my view the submissions made by Mr Thangaraj in relation to s 108A are correct. Even if the evidence relied upon by the prosecution is considered to be mere credibility evidence the Webb/McCorry evidence is such that it has the capacity to substantially affect the assessment of the credibility of Mr Klarenbeek’s representation as to the non-identification of the accused.
In this regard, the author of Uniform Evidence Law (Thompson Reuters, 12th ed, 2016) states at 773:
Matters bearing on the credibility of a witness thus include truthfulness or veracity, intelligence, bias or motive to be untruthful, opportunities of observation, reasons for recollection or belief, powers of perception and memory, any special circumstances affecting competency, prior statements consistent or inconsistent with testimony, internal inconsistencies and ambiguity in testimony and direct contradiction of testimony …. In general these propositions apply even if the person is not a witness (for example, where evidence of a previous representation has been admitted in a proceeding and a party seeks to adduce credibility evidence about the person who made the representation: see s 108A).
It is clear that the concept of credibility applies to evidence which bears on the reliability of a witness generally as well as evidence which bears on the reliability of particular testimony of the witness. In Dupas v The Queen [2012] VSCA 328; A Crim R 507 the Victorian Court of Appeal unanimously held at [265]:
[T]he express reference to a person’s ‘ability to observe or remember facts and events’ can only be a reference to reliability. In short, ‘credibility’ imports notions of both truthfulness and reliability.
In my view the evidence of the non-identification of Webb and McCorry does have the capacity to substantially affect the assessment of the credibility of Mr Klarenbeek in relation to his representations regarding the identification of the person who purchased the .22 Ruger from him. He was under an obligation to tell the truth to police on each occasion of his identification representations and the evidence of his failure to identify either Mr McCorry or Mr Webb, even though he had met them both on a number of occasions and had conducted negotiations with them over the sale of firearms, is capable of tending to prove that his representations made in relation to the identification of the person who purchased the .22 Ruger from him is dubious to say the least, or to use the language of s 108A(2)(a) was made knowingly or recklessly. Furthermore I do not consider that the period of eight months or so between the sale of a rifle to Webb, or the (likely three month) period between the last date of dealings with McCorry, and the identification representations is sufficient to justify Mr Klarenbeek’s failure to identify them.
Whilst there may be explanations, which will no doubt be the subject of submissions before the jury, as to why Mr Klarenbeek did not identify Mr Webb or Mr McCorry, the simple fact is that there can be little doubt that he did sell firearms to both of them. He met and negotiated the sale of the firearms with them. He met Mr Webb twice and Mr McCorry up to five times. On the face of the evidence, as stated above, I conclude that the evidence in question does have the capacity to substantially affect the assessment of the credibility of Mr Klarenbeek in relation to his representations regarding the identification of the persons who purchased firearms from him.
Submissions as to specific orders to be made
The question then arises as to what orders should be made. No submissions were made to me in either written submissions or oral argument as to the appropriate orders to be made and accordingly on 26 September 2017 I made a request of the parties to provide ‘further submissions as to the precise orders that each party submits should be made in relation to the admissibility of representations referred to in Categories 13 and 14 of the schedule’. The prosecution provided further written submissions on 16 October 2017 and the defence provided further written submissions on 20 October 2017. In addition the prosecution provided further written submissions to me on 26 October 2017 dealing with what it submits were incomplete or incorrect statements made by the defence in their written submissions. In consequence of these submissions a number of additional issues arose. The defence made complaint that the prosecution schedule did not include in category 4, as is required by s 67 of the Act, that on 28 January 1989 Mr Klarenbeek provided a description to Detective Pattenden of the man who bought the gun that is ‘inconsistent with Mr Eastman’. Furthermore the defence observes that:
… the prosecution does not assert with regard to category 4 that it does not rely on the asserted fact of the non-identification of Mr Eastman from the photo board (it is not marked with an"*")
In response the prosecution stated in written submissions that the failure to include the description in category 4 of the schedule was inadvertent and that the description will be added to the schedule and marked with an ‘*’ as the prosecution does not rely upon the truth of the description.
Furthermore the defence made complaint that the prosecution had failed to deal with the fact that on 3 February 1989, at a time when it is asserted that Mr Klarenbeek had reason to hold animus towards police because the search warrant was being executed, he confirmed the description he had given on 28 January 1989. The defence made complaint that that representation is also missing from the prosecution schedule even though other representations made at that time ‘about firing the rifle at the quarry at Captains Flat’ are submitted by the prosecution to meet the criteria of ss 65(2)(b) or (c) of the Act. In response to this the prosecution at [12]-[13] stated that:
One document was an occurrence sheet which stated that on 18 January 1989 Mr Klarenbeek stated he sold a .22 rifle KIKO brand to a Bob McCorry and included his address and telephone number. As this information was not known when the Schedule was prepared, its non-inclusion was inadvertent. The information will be included in the amended Schedule.
A further occurrence sheet dated 3 February 1989 related to the search warrant and noted Mr Klarenbeek gave the same description of the person who purchased the rifle which had been given to police when he was first spoken to. This information will be included in the amended schedule and marked with an '*' as it is not relied upon by the [prosecution] as being truthful.
The prosecution has stated that it proposes waiting until the final orders of the Court before amending the schedule which will then accurately reflect all of the representations to be relied upon.
I turn now to the submissions as to the orders to be made. The prosecution submits that if, contrary to its primary submission, I was to conclude that the evidence in category 14 is ‘credibility evidence’ then the following orders should be made:
(a)the previous representations in category 14 are admissible under s 108A(1);
(b)the previous representations in category 11, other than those marked with an asterix, are admitted pursuant to s 65(2)(c);
(c)the previous representations in category 12, other than those marked with an asterix, are admitted pursuant to s 65(3);
(d)the previous representations in categories 11 and 12 marked with an asterix and the previous representations in category 13 are admitted with the consent of the prosecution on the condition that the previous representations in category 14 are admitted (pursuant to s 108A(1)); and
(e)if the previous representations in category 14 are admitted pursuant to s 108A(1) they are limited under s 136 for use as credibility evidence and not as truth of the fact asserted.
In response the defence submits that if, contrary to the submissions made on behalf of the accused that the category 14 representations are inadmissible, I was to find that they are admissible, then I should make no order pursuant to s 136 of the Act limiting the use of the category 14 representation. It is submitted that:
…it should be open to the jury to find that Mr Klarenbeek was truthful when he said he did not recognise Mr Webb and Mr McCorry and denied that they had bought weapons from him. If properly admissible, the truthfulness of those representations is a matter for [the] jury in light of all the evidence, and the use of the evidence should not be limited as only bearing upon 'context' and not as the truth of the fact asserted.
Taking into account the submission made by the prosecution that all it seeks is for the jury to have the ‘complete picture’ and for the evidence not to be considered ‘in a vacuum’, it appears to me that there is some substance in the submission made by the defence in relation to s 136, notwithstanding the overwhelming likelihood that the jury will accept that Mr Webb and Mr McCorry did purchase firearms from Mr Klarenbeek. That said however, the basis of my finding of admissibility of the evidence is that the evidence is credibility evidence rather than context evidence, and not that it is truthful and relevant evidence.
The Peter Klarenbeek representations
I turn now to the issue of the evidence relating to representations said to be made by Mr Klarenbeek to his son Peter Klarenbeek. The representations relied upon by the prosecution are those contained in a record of conversation between Detective Sergeant Lawler and Peter Klarenbeek on 26 February 1991 and the evidence of Peter Klarenbeek given at the trial of the accused on 21 January 1995.
In the course of the conversation with Detective Sergeant Lawler, Peter Klarenbeek said as follows at answer 76:
All I know is, what I might’ve spoken to Dad, the one instance I did, I know that he purchased a firearm, I remember him selling a firearm, him telling me he sold a firearm and that the guy didn’t want it with a scope, I don’t remember anything about a silencer, but I do remember it had a scope. Now your [sic] just saying he purchased a firearm that was collapsible or something, this is how bad I remember, and it had a, you mentioned it had a silencer or a sound reducer or whatever, but you didn’t mention it had a scope. So either Dad attached that to it and tried to sell it with a scope or bought it, bought it with or without it, I don’t know, that’s the only thing I know about it.
He said further at answer 78:
Oh, this is all come about after the Winchester incident, because that’s when it all came about, that’s how I started, I started asking him questions because via somebody actually got a little involved and asked him, and I tried to get, when he was still, when I could still ask him questions, it’s not a very nice thing to start asking people things that they might not want to answer, I didn’t know at that stage whether he did want to answer all these questions or not. And after all he was dying and Christ it’s not the most important thing in my life to go and ask him those sort of things. So, and I felt guilty about doing it, you know, because at the time it was not the time to ask any more. But I asked certain things and snippets of information I got, that I can tie together and certain things still stand me by and this is one, and one thing is that the guy came in on Saturday as far as I know, and this is, I don’t know where I got all this from now, whether I got it from you, or from Mum or from him, right. But altogether, the guy came in on Saturday and looked at the flam’in thing and came back in Sunday to pay for it, and purchased the thing, but then he wanted it without the scope, and he wheeled and dealed about not having the scope to go with it, which is strange I find. The other thing was that, he, which ever [sic] vehicle he came in wasn’t parked in front of the house, it was parked 50 yards or so down the road, which was something I picked up, which I found pretty strange and I said well was, you know, there’s never any cars parked in front of your house, was there any cars parked in front of the house, could he’ve not parked there, and there was apparently no reason for him to park that far down the road, unless he missed the house and just stopped there, you know. That’s the only real thing I know, and asking Mum what he looked like, she sort of didn’t take much interest, because Dad went outside with him, and did the dealing outside as far as I know.
The prosecution concedes that it is unclear when the representations were made to Peter Klarenbeek by his father although they must have been made in the period between when the rifle was sold on 1 January 1989 and the death of Mr Klarenbeek on 26 February 1990. It is contended however that the circumstances that make the representations highly probable to be reliable are that they were made by a father to his son close to the father’s death, and that there was no reason for Mr Klarenbeek senior to lie to his son and furthermore that such representations are consistent with other representations made by him.
As stated above, the prosecution also seeks to rely upon the evidence of Peter Klarenbeek given at the trial on 21 June 1995. The evidence relating to the representations that the prosecution seeks to rely on was given on voir dire. Carruthers AJ ruled it as inadmissible. Peter Klarenbeek did go on to give evidence at the first trial, but about other matters.
Mr Stanton submits that it is unclear when Peter Klarenbeek was provided with this information and therefore the prosecution is unable to establish when, or how long after the asserted fact took place, the representations in question were made in accordance with s 65(2)(b) of the Act. Accordingly the prosecution is forced to rely upon s 65(2)(c).
In my view the representations should not be admitted into evidence. It is quite unclear as to when the representations were made and it is also unclear as to whether the sole source of them was Mr Louis Klarenbeek, or whether information was provided by Mrs Klarenbeek and/or by police.
The Webb representations
I turn now to consider the issues raised in relation to representations (numbered 3) made by Mr Klarenbeek in a conversation with Mr Raymond Webb on 5 January 1989 relating to the sale of a Ruger 10/22 rifle without a telescopic sight.
The representations that the prosecution seeks to rely upon pursuant to ss 65(2)(b) and/or (c) of the Act are set out in detail in the schedule of representations filed in court in the course of oral submissions. The representations relied upon are found in statements of Mr Webb dated 28 January 1989, 28 August 1989, a record of conversation between Detective Sergeant Lawler and Mr Webb on 13 November 1992 and in the evidence of Mr Webb given at the first inquest on 22 November 1990 and at the second Inquest on 18 November 1992 and the evidence of Mr Webb given at the first trial on 6 and 7 June 1995. The evidence in question was admitted at the first trial.
The defence opposition to the admission of the evidence of the representations made to Mr Webb by Mr Klarenbeek is based upon two issues. The first is that a majority of the representations sought to be relied upon by the prosecution concern representations purportedly made on 5 January 1989, a period of some days after the meeting between Mr Klarenbeek and the purchaser of the Ruger on 31 December 1988 and thus the prosecution is unable to satisfy the requirements of s 65(2)(b) of the Act. In relation to this it would appear that there were two representations made to Mr Webb by Mr Klarenbeek, the first on 31 December 1988 and the second made on 5 January 1989, both relating to the sale of the weapon on 1 January 1989. In my view, in the circumstances of this case, a temporal gap of some days would not suggest that the matter was not fresh in the mind of Mr Klarenbeek. Furthermore, the circumstances are such that it is unlikely that the representation is a fabrication.
The second matter submitted by the defence is that the evidence that the representations were made by Mr Klarenbeek, was given by a person who had admitted to having told lies at the first Inquest whilst on oath. In such circumstances it is submitted that the prosecution has not fulfilled its onus in relation to establishing that the circumstances in which the representations were made are such that it is highly probable that the representation is reliable as required under s 65(2)(c) of the Act. Mr Webb was cross-examined in considerable detail by counsel for the accused on a voir dire at the first trial. In the course of that cross-examination (at page 1125 of the transcript) Mr Webb conceded that he had told an untruth at the first Coronial Inquest. Carruthers AJ nevertheless determined that the evidence should be admitted. It should be observed that the evidence of Mr Webb was summarised in some detail in the course of the appeal to the Full Court (see 16-17). Although it was a ground of appeal that the trial judge erred in admitting Mr Webb’s identification evidence, which ground was not made out, there was no suggestion that the evidence of the representations of Mr Klarenbeek given at the first trial was improperly admitted into evidence. Whilst Mr Webb did confess to having told an untruth at the first Inquest he also provided an explanation for having done so. It is a matter for the jury as to whether or not they accept that explanation.
Section 65(2)(b) of the Act refers directly to the representation and not to extraneous matters. In my view the timing and the circumstances are such that it is highly unlikely that the representation that is the subject of Mr Webb’s evidence is a fabrication and the evidence should be admitted.
Orders
The orders I propose to make are:
(a)that the previous representations set out in category 3 are admissible;
(b)that the previous representations set out in category 10 are inadmissible;
(c)that the previous representations set out in category 11, other than those marked with an asterix, are admissible pursuant to s 65(2)(c) of the Act;
(d)that the previous representations set out in category 11, marked with an asterix, are admitted with the consent of the prosecution;
(e)that the previous representations set out in category 12, other than those marked with an asterix, are admissible pursuant to s 65(3) of the Act;
(f)that the previous representations set out in category 12, marked with an asterix, are admitted with the consent of the prosecution;
(g)that the previous representations set out in category 14 are admissible pursuant s 108A(1) of the Act;
(h)that the previous representations in category 14 which are admitted pursuant to s 108A(1) of the Act are limited for use pursuant to s 136 as credibility evidence and not as truth of the fact asserted.
| I certify that the preceding ninety-seven [97] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam. Associate: Date: 17 January 2018 |
[1] In Stephen Odgers SC, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016), Odgers SC at 777 observes that ‘it has to be said that such language as providing ‘a realistic context in which to understand’ a complainant’s evidence sounds suspiciously like a credibility use of the evidence”.
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