R v Eastman (No 29)
[2018] ACTSC 4
•2 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 29) |
Citation: | [2018] ACTSC 4 |
Hearing Date(s): | 27 November 2017 |
DecisionDate: | 2 February 2018 |
Before: | Kellam AJ |
Decision: | The evidence of Shaun Tierney is inadmissible pursuant to s 56(2) of the Evidence Act 2011 (ACT). The evidence of Rodney Kaalverink is admissible. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility of evidence – probative value - identification evidence – similarity evidence - relevance – lack of positive identification – probative value – risk of unfair prejudice – police impropriety |
Legislation Cited: | Evidence Act 2011 (ACT) (the ‘Act’) ss 55, s56, 137 and 138 |
Cases Cited: | Festa v R [2001] HCA 72; 208 CLR 593 R v Dickman [2017] HCA 24; 91 ALJR 686 |
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 ACT Director of Public Prosecution (Crown) ACT Legal Aid (Accused) | |
File Number(s): | SCC 111 of 1992 |
Kellam AJ:
By written submissions dated 3 November 2017 and supplemented by oral argument conducted on 27 November 2017, the defence submits that the evidence of Shaun Tierney and Rodney Kaalverink should not be admitted pursuant to s 55 of the Evidence Act 2011 (ACT) (the ‘Act’) or in the alternative should be excluded pursuant to ss 137 or 138 of the Act.
Neither witness was called to give evidence at the first trial.
In its Amended Case Statement filed 21 August 2015 at page 10 the prosecution summarises the evidence to be given by Shaun Tierney as follows:
On 28 November 1987 Shaun Tierney advertised for sale in the Canberra Times a "Mauser ex-military .243 calibre rifle". The accused contacted Mr Tierney and attended on that day to inspect the firearm. The accused appeared to know little about guns and seemed most concerned with inspecting the scope of the rifle. The accused made an offer which Mr Tierney rejected and the accused did not purchase the firearm.
The evidence of Mr Tierney was submitted by the prosecution to be relevant to Tendencies 2 and 5, which tendencies I have ruled to be defective. Mr Tierney’s evidence was also submitted to be relevant to coincidence. I have ruled that the evidence of Mr Tierney is not relevant evidence in relation to the Coincidence Notice.
In relation to Mr Kaalverink in the Amended Case Statement at page 13 the prosecution seeks to rely upon the following circumstances:
On 26 November 1988 Rodney Kaalverink placed an advertisement in the Daily Telegraph for a "Ruger 10.22" rifle. The accused attended to inspect the firearm and arrived at the property on foot. The accused asked Mr Kaalverink to explain a number of the gun's features and mechanisms to him. The accused told Mr Kaalverink that he was not interested in purchasing the firearm as it was not what he was looking for and no sale eventuated.
The evidence of Mr Kaalverink was submitted by the prosecution to be relevant to Tendencies 2 and 5 which I have previously ruled to be defective. However I have determined that the evidence of Mr Kaalverink is prima facie admissible as being relevant to the Coincidence Notice sought to be relied upon by the prosecution.
Defence submissions in relation to Shaun Tierney’s evidence
The defence argues that the evidence of Mr Tierney is remote in time, the events to which it relates having allegedly occurred on 28 November 1987, well over a year before the death of Mr Winchester. Mr Tierney provided a statement to police on 1 November 1990 almost three years after a number of people had attended his premises to inspect firearms in response to the November 1987 advertisement. At the time that he made the 1 November 1990 statement to police, Mr Tierney provided the following description of a person who had responded to the advertisement and viewed a rifle he had for sale:
The third man who looked at the gun was between 30 and 35 years old. He was about 5'7" or 5'8" tall and a bit under normal build. He had light brown hair which was receding in the front and a bit longer in the back. He was clean shaven, had a fair complexion, and wore square glasses that were lightly tinted. He had on a light coloured casual shirt with a collar, and brown coloured jeans or casual trousers.
At the time of making his statement Mr Tierney was shown a photoboard which included a photograph of the accused which was at position three. Upon viewing the photoboard Mr Tierney said:
I don't think that the person who came to my house was pictured but I indicated to Constable TAYLOR that photograph number three was closest. The man who came to see the gun had longer hair at the front than the photograph, his hair was more like photograph five.
It is argued on behalf of the defence that the evidence is not admissible as it is not ‘positive identification evidence’. It is submitted that the witness statement coming into effect almost three years after the event and in which the witness stated that he ‘did not think’ that the person who came to the house was pictured in the photoboard, is not an identification at all.
It is submitted that this is not a case such as R v Dickman [2017] HCA 24; 91 ALJR 686 (‘Dickman’) where there was a positive identification after a flawed identification procedure. In this case Mr Tierney made no positive identification. Furthermore it is submitted that this evidence, not having been relied upon at the first trial, should not now be sought to be relied upon some 30 years later when the accused has been denied the opportunity to test the evidence at a time more proximate to the alleged events.
The defence submits that the evidence of Mr Tierney, even if admissible as a weak piece of circumstantial evidence, should not be admitted into evidence as any limited probative value is outweighed by the danger of unfair prejudicial effect.
Prosecution submissions in relation to Shaun Tierney’s evidence
In response the prosecution argues that the evidence of Mr Tierney is relevant as it forms part of the course of conduct engaged in by the accused and, in fact, the timing is part of what gives this evidence probative value. The prosecution argues that the fact that the accused engaged in a course of conduct whereby he was interested in, and sought to purchase, firearms over a period of time from October 1987 has always been part of the prosecution case. Although the evidence is that the attendance upon Mr Tierney is more than a year before the murder it is submitted that it is relevant nevertheless because it demonstrates an interest in acquiring a firearm.
As to the issue raised by the defence in relation to the identification by Mr Tierney, the prosecution relies upon Dickman and Festa v R [2001] HCA 72; 208 CLR 593 (‘Festa’) in support of its argument that positive identification is not required to make such evidence admissible, rather that in a circumstantial case evidence of resemblance is relevant and admissible. As Gleeson CJ said in Dickman at [44] the victim’s:
…. opinion that the photograph of the respondent resembled his assailant was nonetheless a relevant circumstance. The fact that standing alone its probative value was low did not require its exclusion unless that value was outweighed by the danger of unfair prejudice.
Furthermore as Gleeson CJ said in Festa at [10] – [14]:
The evidence of Mr Hill was in some respects similar to that held to be admissible by the Supreme Court of South Australia in Murphy v The Queen (1994) 62 SASR 121. There, a number of witnesses to a robbery were shown photographs. They selected one photograph being that of the appellant, but could do no more than indicate that there was a similarity. That evidence was held admissible. King CJ said:
"This evidence was not … in the true sense identification evidence. None of the witnesses were able to identify the photographic slide of the appellant as that of a participant in the robbery. Nevertheless the evidence did possess, in my opinion, some evidentiary value."
In that case, the number of witnesses who selected the same photograph was significant. But the case shows how evidence falling short of positive identification may nevertheless be of significance, having regard to the whole of the evidence.
The argument that the evidence of the four witnesses should have been excluded turned upon what were said to be deficiencies in its quality.
….
Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is "weak", and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters.
Furthermore, the prosecution submits that the evidence of Mr Tierney could rebut the proposition put by the accused at the first trial that he sought to buy a weapon only in response to the alleged conduct of Mr Russo. The so-called Russo assault took place on 17 December 1987 and the events involving Mr Tierney took place on 28 November 1987. In addition it submitted that it is of some significance that the person who offered to purchase the firearm showed some interest in the fact that the firearm had a scope.
Conclusion as to the admissibility of Shaun Tierney’s evidence
In my view the probative value of Mr Tierney’s evidence is slight indeed. It is clear that his evidence cannot be said to be a positive identification of the accused. It might be accepted that the description of the person provided by Mr Tierney, as to the person’s height, wearing of glasses, having light brown hair and receding hairline, is similar to the description provided by other prosecution witnesses of a person, whom the prosecution asserts is the accused. However there is nothing else in the description given by Mr Tierney or in the circumstances under which the person attended upon Mr Tierney that is of significance in terms of probative weight. In terms of the description of the person, the age estimate given by Mr Tierney of 30 to 35 years, the fact of the person being clean shaven and a bit under normal build are not consistent with the appearance of the accused.
The fact that Mr Tierney selected a photograph of the accused as ‘the closest’ is evidence of similarity, but its probative value is reduced by his statement to police that he did not consider that the photoboard contained a picture of the person who came to his house and that the person who did attend had longer hair at the front that was more like another photograph on the photoboard. The fact that Mr Tierney did not make a statement about the matter for nearly three years after it occurred further reduces the probative value of his evidence. The highest use of the evidence could be only that the jury could conclude that it was possible but equivocal as to whether the person who attended upon Mr Tierney was the accused. There is nothing to link Mr Tierney’s evidence with other evidence linking the accused to a search for a firearm. Accordingly in my view the evidence is of marginal probative value and the jury would certainly need to be directed that if accepted the evidence does no more than show some consistency in the appearance of the person so described and the accused.
The next question to be considered is whether, as submitted on behalf of the accused, the prejudicial effect of the evidence outweighs its probative value. That being so, I turn to s137 of the Act which provides:
137Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
It must be noted that s 137 does not provide for the exercise of any discretion by the court. Rather, if the probative value of the evidence is outweighed by the danger of unfair prejudice to an accused person, I am required to exclude the evidence. Section 137 is concerned with unfair prejudice, such as might occur where there is a risk of evidence being sused by a jury in an impermissible manner.
As stated above Mr Tierney’s evidence is of limited probative value. I consider there is a risk of unfair prejudice arising by reason of both the fact that the statement was first made by Mr Tierney so long after his meeting with the person he described and furthermore from the fact that the first opportunity for the accused to test the memory and reliability of Mr Tierney only now arises more than 30 years after the event in question. Inevitably Mr Tierney is highly unlikely to have any current recollection of the circumstances of 28 November 1987 and the only evidence he is likely to be capable of giving will be based upon him refreshing his memory by reference to his police statement. I consider there is a risk that a jury may give the evidence more importance than is justified by all the circumstances. Taking into account the conclusion I have reached about the limited probative value of the evidence in the first place I consider that the danger of unfair prejudice to the accused outweighs the probative value of the evidence and I therefore conclude that the evidence of Mr Tierney is not admissible.
Rodney Kaalverink’s evidence
I turn now to consider the admissibility of the evidence of Rodney Kaalverink. Mr Kaalverink, who lived in Sydney, advertised for sale a Ruger 10/22 rifle. The advertisement appeared in the Daily Telegraph newspaper on 26 November 1988. Mr Kaalverink made a statement to police on 13 October 1989 in relation to events which occurred on 26 November 1988. On the day of the advertisement a person, who the prosecution asserts was the accused, attended at Mr Kaalverink’s home to inspect the firearm. That person attended alone and no car was observed by Mr Kaalverink. Mr Kaalverink described the person as having a fair complexion, being about 5’8” tall, approximately 40 years of age and of medium build. He had short sandy coloured hair with a receding hairline at the front. He wore gold-rimmed glasses, was clean shaven and well dressed. He spoke without noticeable accent and was well spoken.
The rifle that Mr Kaalverink was selling had a Tasco scope fitted to it. The person who attended to inspect the rifle did not want to buy it with the scope attached and tried to ‘knock down’ the price on that basis. Mr Kaalverink refused to lower the price.
On 13 October 1989 Mr Kaalverink provided a description of the person who attended. At that time police showed Mr Kaalverink a photoboard which included a photograph of the accused. Mr Kaalverink did not identify anyone on the photoboard. As the defence points out, subsequent to giving this first description of the person who attended upon him, Mr Kaalverink’s later descriptions of the person were equivocal.
On 17 November 1990 Mr Kaalverink had a conversation with Detective Sergeant Lawler which was recorded. Mr Kaalverink said, with regard to the photoboard that he had been shown in October 1989, that he was not sure about one fellow he saw on the photoboard. He said ‘I just wasn’t sure if it was him or not’. Subsequently he said ‘it could have been number …. 10’ (which was not the accused) and then said ‘It’s been such a long time you now [sic] it’s been dragged over it’s been nearly been two years’.
At the inquest on 21 November 1990, Mr Kaalverink was again shown the photoboard and he was unable to identify the accused on the photoboard.
Probative value of Rodney Kaalverink’s evidence – s 55 of the Act
Submissions in relation to s 55 of the Act – probative value of the evidence
The defence submits that the evidence of Mr Kaalverink does not meet the threshold of s 55 of the Act as it is not probative and there is no positive identification of the accused.
It is true that the identification by Mr Kaalverink is far from positive. However notwithstanding his failure to identify, from the photoboard, the man to whom he spoke regarding the sale of the rifle, the description given to police on 13 October 1989 is a description that is similar to descriptions given by other prosecution witnesses of the person the prosecution asserts is the accused.
As the prosecution submits, the evidence of Mr Kaalverink cannot be looked at in isolation. In addition to the description given by Mr Kaalverink to police of the man in question, there is evidence that the accused was in Sydney on the day that he is alleged to have attended upon Mr Kaalverink. On that day a withdrawal of $260 was made from the accused’s bank account at Haymarket. The advertised price of the rifle was $270. Although that bank withdrawal occurred later in the day than the attendance of the person upon Mr Kaalverink, the prosecution asserts that the accused had done something similar on a previous occasion. The prosecution says that the accused had previously purchased a firearm from Mr Lenaghan and before doing so he had attended to view the firearm, left the premises saying he was not interested, then later returned and purchased the firearm.
Furthermore the prosecution relies on the fact that after the Bradshaw rifle ‘jammed’ the accused had returned the rifle but kept the scope and therefore did not need one. It is argued that the evidence establishes that in the months before meeting with Mr Kaalverink, the accused had made a number of attempts to buy a Ruger, and specifically a Ruger 10/22. The prosecution relies upon the timing of the attendance upon Mr Kaalverink as being significant in that, by the time of the attendance upon him the need for any protection from Mr Russo was long past. The prosecution submits that this evidence needs to be taken into account when considering the probative value of the evidence given by Mr Kaalverink. The prosecution submits that when considered in that way, the evidence of Mr Kaalverink is not only relevant, but of significant probative value.
I accept that the evidence of Mr Kaalverink is relevant and of probative value of substance in this circumstantial case both in relation to the way in which the prosecution puts its case as to motive, and in respect of coincidence evidence.
Should Rodney Kaalverink’s evidence be excluded pursuant to s 137 of the Act?
I turn now to the submission of the accused that the danger of unfair prejudice outweighs the probative value of Mr Kaalverink’s evidence and thus it must be excluded pursuant to s 137 of the Act. The defence submits that because of the weakness of Mr Kaalverink’s identification evidence, there is a danger of it being given disproportionate weight by the jury. It is further submitted that there is unfairness in that the evidence was not led at the first trial.
I do not consider that there is any risk of misuse in the manner contended by Mr Stanton. Such weaknesses as there are in Mr Kaalverink’s evidence will no doubt be obvious to the jury after cross-examination and in any event any such risk can be allayed sufficiently by an appropriate direction by me to the jury.
In the circumstances of Mr Kaalverink’s evidence, it does not seem to me that the fact that the evidence was not led at the first trial is, by itself, sufficient to say that there is such unfairness that it outweighs the probative value of the evidence.
Should Rodney Kaalverink’s evidence be excluded as having been improperly obtained – s 138 of the Act?
Mr Stanton, for the accused, relies upon a further matter which is relevant to s 138 of the Act. He submits that the circumstances of a conversation between Mr Kaalverink and Detective Sergeant Lawler on 6 September 1990 are of such impropriety that the evidence should be excluded. In this regard defence relies on the fact that, in the course of the conversation, Mr Kaalverink was shown a photoboard with photographs of twelve persons and was not warned that a photograph of the person who came to his premises may not be on the photoboard. Defence relies on the fact that in October 1989 Mr Kaalverink had been shown a photoboard containing a photograph of the accused and he said that he could not identify any of those photographs as the man who inspected his Ruger rifle. Subsequently it would appear that on 6 September 1990 Mr Kaalverink told Sergeant McQuillen that in fact he did not want to become involved or go to court because he believed his life might be in danger, and that he believed that the person who had attended at his home, and the person wearing the gold rimmed glasses in the photograph on the photoboard that he had previously been shown, was the same person. It was in this context that Mr Kaalverink was again shown a photoboard on 17 November 1990 by Detective Sergeant Lawler. Mr Kaalverink was then asked to identify the person whom he had mentioned to Sergeant McQuillen on 6 September 1990. Mr Kaalverink then said that it could have been number 10 (which was not a photograph of the accused). Subsequently he said the photograph number 10 or number 1 ‘caught’ his eye, but he then said that the person in number 1 was too old. He said ‘I don’t recall …. I’m just not sure no’.
It should be observed that the photograph of the accused was number 8 on that photoboard. The tape recording was stopped, but then resumed by Detective Sergeant Lawler who stated that:
…. [J]ust as the tape recording was switched off Rodney [Kaalverink] held the photo board in his hand and indicated a number of persons who it definitely wasn’t ….
Mr Kaalverink was then recorded as stating that the persons who definitely didn’t jog ‘an memory all’ were those depicted in photographs 2, 3, 4, 5, 6, 7, 9, 11 and 12. Detective Sergeant Lawler then said that then left as possibilities numbers 1, 8 and 10. Mr Kaalverink responded once again ‘I’m not sure’.
On this basis defence submits that the ‘process of elimination’ in which Detective Sergeant Lawler engaged was improper, and the evidence in relation to the photoboard should be excluded pursuant to s 138 of the Act.
Whilst I agree that how Detective Sergeant Lawler conducted the interview might be criticised as being somewhat sloppy, I think it overstates it to say that he conducted a process of elimination. It was Mr Kaalverink who was definite about which photographs he could definitely exclude as not being the person who had attended at his home. Any further defect in the interview is patently transparent and no doubt will be brought to the attention of the jury by cross-examination. In any event the conduct of Detective Sergeant Lawler fell short of the sort of impropriety required under s 138 of the Act before I could exclude the evidence.
Orders
In the circumstances the appropriate orders to be made are:
a.That the evidence of Shaun Tierney is inadmissible pursuant to s 56(2) of the Act.
b.That the evidence Rodney Kaalverink is admissible.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kellam AJ Associate: Date: 2 February 2018 |
0
3
1